Opinion
CR-05-1805
12-16-2022
ToForest Onesha JOHNSON v. STATE of Alabama
Ty Alper, Berkeley, California; William Robert Montross, Jr., Atlanta, Georgia; and Katherine R. Weisburd, Berkeley, California, for appellant. Troy King, atty. gen., and Beth Jackson Hughes and Peter Smyczek and Jon B. Hayden, asst. attys. gen., for appellee.
Ty Alper, Berkeley, California; William Robert Montross, Jr., Atlanta, Georgia; and Katherine R. Weisburd, Berkeley, California, for appellant.
Troy King, atty. gen., and Beth Jackson Hughes and Peter Smyczek and Jon B. Hayden, asst. attys. gen., for appellee.
McMILLAN, Judge.
The appellant, ToForest Onesha Johnson, appeals the trial court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition.
In August 1998, Johnson was convicted in the Jefferson Circuit Court of the murder of William G. Hardy, a Jefferson County deputy sheriff, while Deputy Har- dy was on duty or "because of some official or job-related act or performance," an offense made capital by § 13A-5-40(a)(5), Ala.Code 1975. The jury recommended by a vote of 10-2 that the death sentence be imposed. The trial court accepted the jury’s recommendation and sentenced Johnson to death. This court affirmed the conviction and sentence. Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001). The Alabama Supreme Court denied Johnson’s petition for writ of certiorari. Ex parte Johnson, 823 So.2d 57 (Ala.2001).
On direct appeal of Johnson’s conviction and death sentence, this court summarized the evidence presented at Johnson’s trial:
"The evidence adduced at trial tended to show the following. On July 19, 1995, between 12:30 a.m. and 1:00 a.m., Deputy Hardy was shot and killed in the parking lot of a hotel in Birmingham. Deputy Hardy had been working a second job as a nighttime security guard at the hotel. Deputy Hardy was paid by the hotel while ‘moonlighting’ as a security guard, but he wore his deputy’s uniform and drove his patrol car to the hotel.
"Barry Rushakoff, the night manager of the hotel, testified that at approximately 12:30 a.m., he heard two ‘popping noises’ coming from the rear parking lot of the hotel. (R. 335.) Rushakoff attempted to contact Deputy Hardy, who carried a portable radio with him, to investigate the noises, but Deputy Hardy did not respond. Rushakoff stated that he then received telephone calls from several guests of the hotel who reported that they had heard gunshots in the rear parking lot. Rushakoff telephoned emergency 911 to report the shots and to get backup support for Deputy Hardy. Rushakoff again attempted to contact Deputy Hardy over the radio, without success. Rushakoff then began walking to the rear of the hotel. On his way, Rushakoff passed a table in the atrium of the hotel where Deputy Hardy often sat. On the table, Rushakoff saw Deputy Hardy’s radio, a cup of coffee, and a cigarette burning in an ashtray. When Rushakoff reached the glass doors at the rear of the hotel, he saw Deputy Hardy’s body lying in the rear parking lot. Rushakoff returned to the front desk and telephoned 911 a second time to report that Deputy Hardy had been injured. Rushakoff stated that while he was on the telephone with the 911 operator, a guest of the hotel, Leonard Colvin, came to the front desk to inquire about car keys that Michael Ansley, his stepson, was supposed to have left for him earlier in the evening. Rushakoff had the keys at the front desk, and he gave them to Mr. Colvin. After completing the 911 call, Rushakoff went to the rear parking lot to wait for police to arrive. According to Rushakoff, he did not see anyone, other than Deputy Hardy, in the parking lot while he was waiting for the police.
"Larry Osborne was a guest at the hotel on the night of July 18–19, 1995. He was staying in a third-floor room facing the rear parking lot. Osborne testified that he was awakened in the middle of the night by a gunshot. He looked at the clock, which reflected 12:40 a.m., and within a few seconds heard a second gunshot. Osborne stated that he went to the window of his room and looked at the rear parking lot. He did not see anyone in the lot, but he did see a car directly under his window slowly pull out of the lot without its headlights on. Osborne described the car as an early 1980s model General Motors vehicle that appeared to be ‘greenish.’ (R. 398.) He stated, however, that the parking lot was illuminated by sodium vapor lights that cast a yellow tint on everything in the parking lot and that could have affected
his perception of the color of the vehicle. Osborne stated that he remained in his hotel room until the ambulance arrived and Deputy Hardy’s body became visible in the spotlight. He then went down to the parking lot and was later questioned by police.
"Annie Colvin testified that she and her husband, Leonard Colvin, were also guests at the hotel on July 18-19, 1995. Colvin stated that she was driving her son’s red Lexus coupe on July 18 and that she parked it in the parking lot at approximately 9:00 p.m. Her son, Michael Ansley, was supposed to drop off his second car, a gold Lexus sedan, pick up the red Lexus, and leave the keys to the gold Lexus at the hotel for Colvin sometime that evening. Colvin stated that she was awakened that night by gunshots and immediately woke her husband. Her husband went downstairs and retrieved the keys to the gold Lexus from the front desk of the hotel. The night manager, Rushakoff, stated that Ansley had dropped off the set of keys for Colvin at the front desk of the hotel at approximately 11:30 p.m. on July 18, 1995. Rushakoff stated that Ansley was driving a red sports car at the time.
"Several law-enforcement officers from Homewood, Birmingham, and Jefferson County Sheriff’s Department responded to the ‘double ought’ dispatch, meaning officer down, that resulted from Rushakoff’s second 911 call. Officer Rett Tyler with the Homewood Police Department was the first officer to arrive on the scene. Officer Tyler stated that when he arrived, he saw the body of a deputy sheriff in the rear parking lot. Although he did not know Deputy Hardy personally, Officer Tyler stated that he recognized the Jefferson County deputy’s uniform. When Officer Tyler arrived, Deputy Hardy was still breathing, but was unconscious as a result of bullet wounds to the head. Officer Tyler stated that Deputy Hardy’s pistol was still in its holster. At this point, several other officers and emergency personnel began arriving on the scene. The emergency personnel worked on Deputy Hardy briefly and then transported him to a hospital, where he ultimately died.
"Dr. Robert Brissie, chief medical examiner for Jefferson County, performed an autopsy on Deputy Hardy on July 19, 1995. The initial exterior examination of Deputy Hardy’s body and clothes revealed a bullet hole in the front of Deputy Hardy’s hat that corresponded to an entrance wound on the front of Deputy Hardy’s forehead and a bullet hole in the back of the hat that corresponded to an exit wound on the back of Deputy Hardy’s head. Dr. Brissie stated that the soot pattern on Deputy Hardy’s hat and face indicated that the shot to the forehead was fired from between 12 and 20 inches away. In addition, the autopsy revealed that the bullet entered Deputy Hardy’s forehead at approximately a 15–degree upward angle. Dr. Brissie’s examination also revealed a wound to the little finger and base of the thumb of Deputy Hardy’s left hand, and to Deputy Hardy’s left jaw. Dr. Brissie stated that, in his opinion, a single bullet passed through the tip of the left small finger, entered and exited the base of the left thumb and then entered Deputy Hardy’s left lower lip and jaw. However, he stated that it was possible that the wounds to the left hand and the left jaw were caused by two bullets rather than one. Dr. Brissie stated that Deputy Hardy died from multiple gunshot wounds.
"Testimony showed that during the initial investigation of the scene several different descriptions of automobiles that had been seen leaving the area were given to police and dispatched to
the local police departments. One BOLO (‘be on the lookout’) was issued for a white Caprice automobile with two to three occupants; another was issued for a black vehicle. In addition, during the investigation, Sgt. Charlie Richardson, an evidence technician with the Jefferson County Sheriff’s Department, discovered two 9mm shell casings in the parking lot. Sgt. Richardson stated that ballistics tests indicated that both shell casings had been fired from the same weapon. The weapon used to kill Deputy Hardy was never recovered.
"James Evans, a patrol officer with the Homewood Police Department, testified that at approximately 4:00 a.m. on July 19, 1995, he received a dispatch to investigate a suspicious vehicle at a motel in Homewood; the vehicle matched the BOLO issued for a black vehicle. When he arrived at the motel, Officer Evans saw a 1972 black Monte Carlo automobile in the parking lot. A black male, later identified at Johnson, was standing by the driver’s side door; another black male, later identified as Ardragus Ford, was seated in the front passenger seat of the car; a black female, later identified at Latanya Henderson, was seated in the backseat; and another black female, later identified as Yolanda Chambers, was exiting the motel. After approaching the vehicle, Officer Evans and his partner moved Johnson to the rear of the vehicle and attempted to remove Ford from the passenger seat. Because Ford was paralyzed, he was Unable to get out of the vehicle until his wheelchair was retrieved from the trunk. The suspects were patted down, and Johnson was subsequently arrested on an outstanding warrant unrelated to the shooting of Deputy Hardy. A taxi was called for Ford, Henderson, and Chambers because none of them could produce a driver’s license, but the vehicle was not searched or towed; it remained in the motel parking lot.
"Latanya Henderson testified that Yolanda Chambers telephoned her at home several times between 10:30 p.m. and 11:00 p.m. on July 18, 1995. At approximately 2:00 a.m. on July 19, 1995, Henderson said, Chambers, Johnson, and Ford arrived at her home in Ford’s vehicle and asked her to go with them to get something to eat. She agreed, and the four individuals drove to the motel. Henderson stated that she was carrying a .25 caliber handgun in her purse and that she also saw Johnson carrying a gun that night; she did not describe Johnson’s gun. According to Henderson, when they pulled into the parking lot of the motel, they saw a police car behind them. Henderson stated that Johnson hid his gun underneath the dashboard of the car and that she got out of the car and hid her gun under the tire of another car parked in the parking lot. Henderson testified that the gun remained hidden when she left the scene, but that several days later, she told the police about her gun and it was retrieved from the parking lot. Henderson stated that she did not see Chambers, Ford, and Johnson until 2:00 a.m. on July 19, 1995, and that she was not at the hotel when Deputy Hardy was shot. In addition, Henderson stated that she had previously been charged with hindering prosecution in relation to Deputy Hardy’s murder, but that the charge had been dismissed the morning of her testimony.
"Over objection, the State also presented evidence that Johnson had made several telephone calls in August 1995 from the Jefferson County jail that were overheard by, a woman named Violet Ellison. Ellison testified that during
these calls, she heard Johnson speak about the murder of Deputy Hardy and admit to shooting Deputy Hardy in the head.
"Johnson presented two alternative defenses at trial. First, through the testimony of Yolanda Chambers, Johnson asserted that, although he was present when Deputy Hardy was shot, he was not involved in the shooting and did not know the shooting was going to happen. Chambers testified that she was with Johnson, Ardragus Ford, and Latanya Henderson at the hotel on the night of July 18-19, 1995. She stated that when Deputy Hardy came out of the hotel, Ford, without warning, shot him once. Startled, Chambers looked away, and then heard a second gunshot. Chambers stated that she did not see who fired the second shot. Chambers admitted to lying to the police on several occasions during the investigation, and implicating several different people in Deputy Hardy’s murder. Chambers testified that on different occasions she had told police that a man named Omar Berry had shot Deputy Hardy; that a man named Quintez Wilson had shot Deputy Hardy; and that Johnson had shot Deputy Hardy. Chambers also testified that she had told police (and she had testified at several different proceedings) that Deputy Hardy was murdered because he came out to the rear parking lot of the hotel and saw a drug deal being consummated. In addition, Chambers testified that she had told police that she, Johnson, Ford, and Henderson were at the hotel to rob Michael Ansley. However, she stated that all of her previous statements to the police and her previous testimony at different proceedings were lies and that this time she was telling the truth.
"Second, through the testimony of Montrice Dunning and Christi Farris, Johnson asserted an alibi defense. Dunning and Farris both testified that on a Tuesday night in July 1995, they were at ‘Tee’s Place,’ a nightclub. They arrived at approximately 11:00 p.m. and left at approximately 2:00 a.m. Both stated that they saw Johnson at the nightclub several times between 11:00 p.m. and 2:00 a.m. and that Johnson walked them to their vehicle at 2:00 a.m. when they left. In addition, both stated that Johnson was wearing a navy blue ‘Tommy Hilfiger’ brand shirt with stripes on the collar. (R. 849; 872.) A mugshot of Johnson, taken when he was arrested in the early morning hours of July 19, 1995, was introduced into evidence by the defense. In the photograph, Johnson is wearing a navy blue ‘Tommy Hilfiger’ brand shirt with stripes on the collar. On cross-examination, Dunning stated that she did not know which Tuesday night in July she had seen Johnson at the nightclub, but that Johnson’s defense counsel had told her that it was on July 18, 1995. Farris stated on cross-examination that she was positive that it was on the second Tuesday in July when she had seen Johnson at the nightclub. We take judicial notice that the second Tuesday in July 1995 was July 11, 1995, one week before Deputy Hardy was killed on July 19, 1995."
Johnson v. State, 823 So.2d 1 at 9–13.
On April 30, 2003, Johnson, through counsel, Ty Alper, filed a Rule 32, Ala. R.Crim. P., petition in the Jefferson Circuit Court. Along with his Rule 32 petition and filing fee, Johnson also filed a "Motion to Proceed in Forma Pauperis"; a "Motion for Leave to Proceed Ex Parte, In Camera, and on a Sealed Record with Regard to Applications for Expert and Investigative Assistance"; a "Motion for a Complete Recordation"; and a "Motion for Appointment of Ty Alper as Counsel." Johnson subsequently filed two amended petitions. On June 16, 2005, the State filed its answer to Johnson’s second amended petition.
On October 24, 2005, Johnson filed several motions, including a "Rule 32.6(d) Motion to Transfer Case to a Different Judge"; a "Motion for Leave to Amend"; and a "Third Amended Petition for Relief From Conviction and Sentence of Death Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure." On April 27, 2006, the State filed a motion requesting that the circuit court schedule a hearing on Johnson’s motion to transfer the case to a different judge. On May 24, 2006, the circuit court denied Johnson’s motion to transfer the case to a different judge.
The court granted Johnson’s motion for complete recordation and denied his "Motion for Leave to Proceed Ex Parte, In Camera, and on a Sealed Record with regard to Applications for Expert and Investigative Assistance." The court also denied Johnson's motion for leave to amend his Rule 32 petition a third time. The circuit court then summarily dismissed Johnson's petition. Johnson then filed a notice of appeal from the circuit court's dismissal of his petition.
I.
Johnson contends that the trial court erred in denying his motion to transfer his case to a different judge in a separate circuit, because of bias and a possible lack of impartiality. In support of his claim, Johnson contends that because the trial judge’s brother worked in the office of the Jefferson County Sheriff’s Department and held political aspirations, the trial judge should have avoided the appearance of bias or prejudice and disqualified himself from the proceedings. Additionally, he argues the trial judge exhibited bias when it allegedly made improper factual determinations and unsupported accusations in dismissing his petition. In support of his claim, he argues the trial judge demonstrated bias and prejudice toward his case, when it labeled his questioning, regarding the character of a State’s witness, Steve Saxon, as "libelous." Johnson also contends that the trial court called his counsel "liars." Further, he argues the trial judge conducted its own investigation of court records to defeat his claim that he was entitled to a transfer of his ease to a different judge. Lastly, he argues that the trial judge should have disqualified himself because he signed an order instracting the State to pay witness Violet Ellison reward money and could therefore be considered to be a "material witness."
[1, 2] All judges are presumed to be impartial and unbiased. Ex parte Grayson, 665 So.2d 986 (Ala.Crim.App.1995). "The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice." Ex parte Melof, 558 So.2d 554, 557 (Ala.1989).
Canon 8.C, Alabama Canons of Judicial Ethics, states:
"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it."
"The Alabama Supreme Court in Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.), cert. denied, 513 U.S. 1007, 115 S.Ct. 528, 130 L.Ed.2d 432 (1994), stated the following about Canon 3(c):
" ‘Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required "when facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge." Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: "Would a person or ordinary prudence in the judge’s position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?" Matter of Sheffield, 465 So.2d 350, 356 (Ala. 1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality—whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).’
" ‘Canon 3(C)(1) does not require disqualification upon mere allegations of bias that are not supported by substantial fact; and the party seeking recusal must come forward with evidence establishing the existence of bias or prejudice.’ Blankenship v. City of Hoover, 590 So.2d 245, 251 (Ala.1991)."
Ex parte Grayson, 665 So.2d at 986–87.
[3] Initially, we note that although Johnson, in his Rule 32 petition, challenged the trial judge’s bias and lack of impartiality stemming from the trial judge’s brother’s employment in the sheriff’s department, he did not raise the issue on appeal; therefore, it is not before this court for appellate review. Rule 28(a)(10), Ala. R.App. P. Assuming for the sake of argument, however, that the issue was properly before this court, Johnson has made no showing that the trial judge could not try the case against him impartially and without bias. In fact, in his motion to transfer the case to a different Judge, Johnson acknowledged that he "does not suggest that [the trial judge] has done anything wrong or improper in the handling of these proceedings." See Tatum v. Carrell, 897 So.2d 313, 325 (Ala.Civ.App. 2004) (a party’s concession in his motion to recuse that he was making "no suggestion of improprieties" weighed against recusal). Johnson presented no evidence that the judge’s brother knew the victim, was involved in the investigation of the victim’s murder, or that the two had spoken about any on going investigation. The mere possibility that a bias on the part of the trial judge might exist, while unsupported by any substantial fact, is insufficient to warrant the trial judge’s recusal. Because Johnson failed to present any evidence establishing a bias or prejudice on the part of the trial judge, anywhere in the entire proceeding, his motion was properly denied.
Next, Johnson’s allegation that the trial court made improper factual determinations and unsupported accusations in dismissing his petition is a conclusory allegation unsupported by any substantial fact. In its order, dismissing the petition, the trial court refutes Johnson’s allegation that it at any time during the proceedings called counsel for the petitioner "liars." The trial court acknowledges that it informed defense counsel that the continual berating of a State’s witness, Steve Saxon, could be considered "libelous" and "defamatory." However, this language does not indicate any bias on the part of the trial court in dismissing the claim relating to the State’s witness as it might relate to a claim of ineffective assistance of counsel. Again, this is an allegation unsupported by any substantial evidence. Moreover, nothing in the record, including the trial court’s order, indicates that the trial court conducted its own "investigation" to defeat Johnson’s request for a transfer of the case to a different judge. The trial court, in its order, stated that "there were one hundred sixty-two (162) capital murder, felony murder and manslaughter trials which were conducted [between 1995 and 1998]," and that "[a]ll of these wrongful deaths were violent tragedies and, as such, received media attention;" however, that statement, without more, in no way supports the allegation that the trial court conducted its own independent, "biased" investigation in dismissing any of Johnson’s claims, including his request for a transfer of the case to a different judge.
[4] Last, Johnson claims that the trial judge was a "material witness," because it signed the order paying a State’s witness, Violet Ellison, a cash reward. Johnson argues that because the fact of the reward is the basis for a claim in his petition, the trial judge is a material witness with extra-judicial knowledge of that claim. The record indicates that Johnson’s argument was not, but could have been, raised at trial and on appeal. Because it was not, it was procedurally precluded from appellate review. Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Assuming the issue was preserved, the trial judge would not have been considered a "material witness" merely because it signed the order authorizing the payment of the reward money to Ms. Ellison. See Callahan v. State, 557 So.2d 1292, 1307 (Ala.Crim.App.1989) ("a ‘material witness’ is ‘a witness who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify.’ ") Because there were numerous witnesses, including the district attorney, who could testify as to the particulars of the reward money, and because the order spoke for itself, Johnson’s argument was without merit.
II.
Johnson contends that the State did not comply with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because, he says, it failed to disclose several pieces of evidence, including evidence that a key witness for the State, Violet Ellison, was motivated to testify because of a large cash reward and other evidence including statements made to police, that could potentially have been used to impeach the witness. Additionally, Johnson claimed that Katrina Ellison, Violet Ellison’s daughter, told police about three-way telephone conversations, during which Johnson denied having anything to do with Deputy Hardy’s murder and that trial counsel was never informed of the conversations. He also claimed that the police had spoken to Fatuma Robinson and Kamillah Robinson, who stated that Johnson had telephoned them from jail and had denied any involvement in the murder; that Quintez Wilson, another suspect in the shooting, had passed a lie detector test indicating that he had not participated in the shooting and trial counsel was never informed of the fact; that none of the evidence establishing Quintez Wilson’s innocence had been provided to defense counsel; that the State never informed trial counsel that the car in which Johnson was riding on the night of the murder was searched and no incriminating evidence was found; that trial counsel was never told that a cab driver, John Renfroe, was parked near the entrance to the hotel when he heard gunshots, and observed a white Chevy Malibu automobile speed away from the parking light with its lights off; and that Yolanda Chambers told police that codefendant Ardragus Ford shot Dep- uty Hardy twice and that Johnson did not participate in the shooting.
[5] In denying Johnson’s claims, the trial court stated:
"Petitioner’s claims have no merit. Firstly, his claims are precluded pursuant to Rule 32.2(a)(3), Ala. R.Crim. P. because they could have been raised at trial, but were not. Secondly, his claims are precluded pursuant to Rule 32.2(a)(5), Ala. R.Crim. P. because they could have been raised on appeal, but were not. This Court would also point out that while Petitioner has made numerous allegations of ‘withheld exculpatory evidence,’ he has provided this Court with nothing which would warrant relief. (See Rule 32.2, Ala. R.Crim. P.) It has been found that ‘To establish a Brady violation, a defendant must show that (1) the prosecution suppressed evidence, (2) the evidence suppressed was favorable to the defendant or was exculpatory, and (3) the evidence suppressed was material to the issue at trial. Ex parte Kennedy, 472 So.2d 1106 (Ala.1985), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). "Materiality" requires a finding that, had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.’ Coral v. State, 628 So.2d 954, 979 (Ala.Crim.App.1992), aff’d, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). Petitioner’s claims are nothing more than bare, unsubstantiated allegations. (See Rule 32.6(b), Ala. R.Crim. P.) Petitioner has failed to meet his required burden of proof relative to these claims."
Johnson admits, in his brief to this Court, that the information regarding Ms. Ellison’s motivation to testify amounted to impeachment evidence. It is well-settled that newly discovered evidence under Rule 32.1(e)(3), Ala. R.Crim. P., allows relief on Brady claims only where "[t]he facts do not merely amount to impeachment evidence." See also Payne v. State, 791 So.2d 383 (Ala.Crim.App.1999). As evidenced by the trial court’s order, Johnson’s Brady claims are procedurally barred because he failed to satisfy the requirements of Rule 32.1(e) and because of the preclusionary grounds of Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
III.
[6] Johnson argues that his conviction and sentence are unconstitutional because, he says, he is actually innocent.
The trial court held that this issue was procedurally precluded from review because it was raised and addressed at trial and on appeal. Rule 32.2(a)(2) and (4), Ala. R.Crim. P. Johnson, however, claims that his motion for a judgment of acquittal, made both at the close of the State’s case and at the close of his defense, did not preclude or dispose of this issue because, he says, the motion addressed only whether Deputy Hardy was "on duty" when he was murdered, and not Johnson’s innocence. However, the issue of Johnson’s innocence was raised when he pleaded "not guilty" and stood trial. Moreover, the denial of Johnson’s motion for a judgment of acquittal, challenging the sufficiency of the evidence, including his claim of innocence, was raised at trial and on direct appeal and decided adversely to him. See Johnson v. State, 823 So.2d 1, 40 (Ala.Crim.App. 2001).
IV.
Johnson contends that his conviction and sentence must be overturned because of newly discovered evidence. In support of his argument, Johnson reiterates the same claims of newly discovered evidence that he used to support his claim of a Brady violation.
The trial court, in its order, properly recognized that Johnson, in his claim asserting newly discovered evidence, had raised no distinct or additional claims from his Brady violation claims and dismissed the argument based on his failure to meet his burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle him to relief. See Rule 32.1(e)(1), Rule 32.2, Rule 32.6(b), Ala. R.Crim. P.
V.
[7] Johnson contends that the trial court erred in dismissing his claims regarding the court’s failure to strike two jurors for cause. Because this issue was raised and addressed at trial and on appeal, it is procedurally precluded from review. Rule 32.2(a)(2) and (4), Ala. R.Crim. P.
VI.
Johnson makes several different arguments, other than ineffective-assistance-of-counsel claims, that are procedurally barred in this Rule 32 proceeding. The following arguments are procedurally barred:
1. That the State introduced "rank, untrue hearsay" against him;
2. That the State knowingly introduced false testimony against him at trial;
3. That the State knowingly presented a prosecution theory against him that was inconsistent with the theory used against his codefendant, Ardragus Ford;
4. That the trial court improperly considered a youthful offender adjudication and arrests that had not resulted in convictions; and
5. That lethal injection and electrocution as methods of carrying out the death sentence are unconstitutional.
[8–10] Issues 1 and 2 are barred because they could have been, but were not, raised at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Issues 3 and 4 are barred because they were raised and addressed on direct appeal either before this Court or the Alabama Supreme Court. See Rule 32.2(a)(4), Ala. R.Crim. P. Issue 5 was barred because it was raised and addressed at trial, and could have been, but was not, raised on direct appeal. Rule 32.2(a)(2) and (5), Ala. R.Crim. P.
VII.
Johnson contends that the procedural bars under the Alabama Rules of Criminal Procedure governing postconviction proceedings should not apply to him. In support of his claim, he argues that this Court should reject the procedural bars that apply to many of his claims as "violative of the principles of fundamental fairness embodied in the Constitution."
[11] This Court has held numerous times that procedural bars in postconviction relief apply to all cases, even those involving the death penalty. Hooks v. State, 822 So.2d 476, 481 (Ala.Crim.App. 2000) ("Alabama has never recognized any exceptions to the procedural default grounds contained in Rule 32, Ala. R.Crim. P.") State v. Tarver, 629 So.2d 14, 19 (Ala. Crim.App.1993) ("The procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed").
Johnson also contends that it was improper for the trial court sua sponte to raise procedural bars. The record reveals that the State’s "Answer to Johnson’s Second Amended Petition," pleads all the grounds of preclusion with specificity. Moreover, the trial court acknowledged, in its order, that it had considered the pleadings of the respective parties, including the State’s "Answer to Johnson’s Second Amended Petition," in making its findings of fact. The trial court further stated throughout its order that the third amended petition, filed by Johnson, is basically a "verbatim reproduction" of both his first amended petition and his second amended petition.
VIII.
[12] Johnson argues that the trial court erred in denying three motions that accompanied his Rule 32 motion. First, he argues that the trial court erred in denying his motion to proceed ex parte in camera, and on a sealed record with regard to applications for expert and investigative assistance. Because the law is clear that Rule 32 petitioners are not entitled to funds to hire experts to assist in postconviction litigation, ex parte or otherwise, the trial court did not err in denying the motion. Boyd v. State, 913 So.2d 1113 (Ala. Crim.App.2003).
[13] Next, Johnson’s second motion, a motion for the appointment of counsel, was properly denied because Johnson is not entitled to appointed counsel in his post-conviction proceeding. See Deas v. State, 844 So.2d 1286 (Ala.Crim.App.2002) (the appointment of counsel in a Rule 32 proceeding is discretionary with the trial court). Additionally, as the trial court noted in its order, Johnson was represented by Ty Alper and his non-profit law firm, who along with this motion, filed three other motions in addition to the Rule 32 petition. Johnson failed to demonstrate that court-appointed counsel was "necessary to assert or protect the rights of the petitioner," pursuant to Rule 32.7(c), Ala. R.Crim. P. Therefore, the trial court did not abuse its discretion in denying the motion.
[14] Last, Johnson’s third motion, a motion for leave to proceed in forma pauperis, was properly denied as moot. The record reveals that counsel for Johnson has already paid the requisite $154 filing fee, and Johnson’s prison account reveals that his deposits between April 2002 and April 2003 totaled $1,230. Hence, the trial court concluded that he had sufficient funds available to pay his filing fee.
IX.
Johnson contends the trial court’s order dismissing his petition was insufficient. More particularly, he argues that in dismissing many of his claims, the trial court incorrectly phrased Johnson’s pleading inadequacies as a failure to meet his "burden of proof." Additionally, Johnson argues the trial court dismissed many of his claims as "insufficiently specific" even though, he alleges, many of his claims are lengthy and sufficiently specific to meet the requirements of Rule 32.2 and 32.6(b).
Although the trial court often used the phrase "burden of proof," it is clear from the trial court’s order that it meant "burden of pleading and proof," as stated in Rule 32.3, Ala. R.Crim. P. Rule 32.3, Ala. R.Crim. P., provides, in relevant part:
"The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."
Rule 32.6(b), Ala. R.Crim. P., provides:
"The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings."
[15] Bare allegations of fact and conclusions of law in a Rule 32 petition are not sufficient to warrant further proceedings on the petition. Rule 32.2, Ala. R.Crim. P.; Rule 32.6(b), Ala. R.Crim. P. Instead, a petitioner must plead his claims with specificity and fully disclose the factual basis for those claims. It is clear from the language in the trial court’s order, including its adoption of much of the language contained in the State’s "Answer to the Second Amended Petition" on the issue whether Johnson had sufficiently pleaded and proven his claims, that it was aware of Johnson’s burden at the pleading stage and that it found that the majority of his allegations were insufficient to warrant further proceedings. Cf. Borden v. State, 891 So.2d 393 (Ala.Crim.App.2002).
Johnson contends that many of his arguments should not have been dismissed under Rule 32.6(b), because they were "lengthy" claims; however, this does not necessarily mean that they were sufficiently specific to warrant further proceedings. In this case, they were not.
X.
Johnson contends that the trial court erred in dismissing his ineffective-assistance-of-trial-counsel claims.
[16, 17] To prevail on a claim of ineffective assistance of counsel the petitioner must satisfy the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must show (1) that counsel’s performance was deficient and (2) that he was prejudiced as a result of the deficient performance.
" ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’ "[Strickland v. Washington,] 466 U.S. at 689, 104 S.Ct. 2052 (citations omitted.) As the United States Supreme Court further stated:
" ‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonably precisely to the extent that reasonably professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, apply- ing a heavy measure of deference to counsel’s judgments.’
"466 U.S. at 690–91, 104 S.Ct. 2052. ‘An accused is entitled " ‘not [to] errorless counsel, and not [to] counsel judged ineffective by hindsight, but [to] counsel reasonably likely to render and rendering reasonably effective assistance.’ " ’ Bui v. State, 717 So.2d 6, 27 (Ala.Crim. App.1997), quoting Thompson v. State, 615 So.2d 129, 134 (Ala.Crim.App.1992), quoting in turn Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir.1977)."
Adkins v. State, 930 So.2d 524, 534–35 (Ala.Crim.App.2001).
A.
[18] Johnson raised the following ineffective-assistance-of-trial-counsel claims, which the trial court found were procedurally barred from review:
1. That trial counsel was ineffective, in part, because of inadequate resources available for his defense;
2. That trial counsel was ineffective for entrusting the investigation of the case to a "brain-damaged, suicidal, racist, alcoholic homeless man with an IQ of 63;"
3. That the lack of a competent investigation prejudiced Johnson in several significant ways;
4. That trial counsel performed deficiently in failing to call various experts during the trial phase;
5. That trial counsel was ineffective for failing to object to the manner of execution; and
6. That trial counsel failed to present "extensive mitigating evidence" that it failed to uncover.
Because all of the aforementioned claims were raised on direct appeal before this Court, they were properly dismissed by the trial court. See Rule 32.2(a)(4), Ala. R.Crim. P.
B.
[19] Johnson raised several ineffective- assistance-of-counsel claims regarding trial counsel’s conduct during the pretrial stage and during the guilt and penalty phases of the trial proceedings. The following ineffective-assistance claims were insufficiently pleaded, pursuant to Rule 32.6(b), Ala. R.Crim. P., and were therefore, properly dismissed by the trial court:
1. That trial counsel failed to file a motion seeking the recusal of the trial judge;
2. That trial counsel failed "to establish on the record the very large presence of uniformed sheriffs deputies who were in the courtroom during the trial, and in failing to file a motion to prohibit the officers from attending the trial;
3. That trial counsel failed to move for a transfer of the case to another judge;
4. That trial counsel failed to make certain Batson arguments, so that the trial and appellate court could discern the basis for the Batson motion;
5. That trial counsel failed to include juror information on the record on appeal;
6. That trial counsel failed to argue that certain aspects of Alabama’s death penalty are unconstitutional;
7. That trial counsel, during the guilt phase, failed to object to prosecutorial misconduct and should have asked for curative measures as to prosecutorial comments made during opening and closing statements;
8. That trial counsel failed to object to the mention of Johnson’s outstanding arrest warrant;
9. That trial counsel failed to object to the introduction of hearsay statements by State’s witness, Latanya Henderson; 10. That trial counsel failed to call John Renfroe as a witness (The trial court noted that Johnson alleges in a separate Brady claim, that his lawyers were never told about Mr. Renfroe, or given a copy of his statement);
The trial court noted that Johnson alleges in a separate Brady claim that his lawyers were never told about Mr. Renfroe or given a copy of his statement.
This case was originally assigned to another member of this Court; it was reassigned to Judge Joiner on March 1, 2011.
In our opinion on return to remand, we instructed the circuit court "to hold an evidentiary hearing on the claim that Johnson’s counsel was ineffective for failing to present the testimony of Marshall Cummings." Our opinion did not specifically reference Sgt. Anthony Richardson; the claim related to Cummings, however, also alleged that counsel were ineffective for failing to call Sgt. Richardson to testify at the second trial. Evidence was presented as to both witnesses on return to second remand, and we now address the claim as to both witnesses.
Johnson also alleges that, contrary to this Court’s conclusion in its 2007 opinion, the following claims were raised on appeal: Claims XIX(E)(6), XIX(E)(11), XX(2), XX(4), XX(5), XX(7), and XXIV.
Claims XIX(E)(6) and XX(5) were included in a perfunctory listing of claims that Johnson asserted on appeal, but he made no argument in regard to these specific claims. This perfunctory listing does not comply with Rule 28(a)(10), Ala. R.App. P., and those claims are deemed waived.
As to claim XIX(E)(11), Johnson made a cursory argument at page 54 of his brief; that argument, however, does not comply with Rule 28(a)(10), Ala. R.App. P., and is therefore deemed waived.
A claim similar to XXIV—challenging Alabama's manner of execution—is made on the pages Johnson directs us to examine, but that claim and claim XXIV are both without merit.
As for the remaining claims-—Claims XX(2), XX(4), and XX(7)—that Johnson says he argued on appeal, the pages he directs us to examine on rehearing do not, in fact, address those claims.
Chief Justice Roberts, joined by Justices Thomas, Alito, and Gorsuch, dissented. Chief Justice Roberts wrote:
''Beckworth is a state court decision that turns entirely on state procedural law. It was expressly called to the attention of the state courts, which declined to upset the decision below in light of it…. The question presented concerns state collateral review—purely a creature of state law that need not be provided at all. Whatever one’s view on the propriety of our practice of vacating judgments based on positions of the parties, see Hicks v. United States, 582 U.S. 924, 137 S.Ct. 2000, 198 L.Ed.2d 718 (2017), the Court’s decision to vacate this state court judgment is truly extraordinary."
Johnson v. Alabama, 582 U.S. 927, 137 S.Ct. 2292, 2292–93, 198 L.Ed.2d 720 (2017) (Roberts, C.J., dissenting).
Johnson at first offered 22 exhibits. He offered six more exhibits after Ellison testified at the hearing.
11. That trial counsel failed to object when the State knowingly introduced false testimony;
12. That trial counsel failed to object to the introduction of hearsay evidence offered by Officer James Evans;
13. That trial counsel failed to move to prohibit the jury from considering an aggravating circumstance that, Johnson argues, was unsupported by the evidence;
14. That trial counsel failed to object to the trial court’s penalty phase instructions;
15. That trial counsel failed to introduce evidence indicating that the 1971 Monte Carlo that Johnson had been in on the night of the murder was found;
16. Trial counsel failed to introduce evidence of Quintez Wilson’s innocence (In a separate Brady claim, Johnson argues that his lawyers were not aware of this information); and
In a separate Brady claim, Johnson argues that his lawyers were not aware of this information.
Effective August 1, 2002, the statute of limitations to file a postconviction petition was shortened from two years to one year. Rule 32.2(c), Ala. R.Crim. P.
The circuit court held an evidentiary hearing on June 24-25, 2014, and entered an order on December 8, 2014, denying Johnson’s claims. After the case was resubmitted to this Court on December 11, 2014, this Court granted Johnson’s motion for leave to file a brief on return to remand. Briefing on return to remand was completed in July 2015.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
"C. __" refere to the clerk’s record on return to remand after remand by the United States Supreme Court. "R. __" refers to the reporter’s transcript of the June 6, 2019, evidentiary hearing.
"Supp. C.__" refers to the first supplemental record on return to remand after remand by the United States Supreme Court. "2d Supp. C.__" refers to the second supplemental record on return to remand after remand by the United States Supreme Court. "3d Supp. C.__" refers to the third supplemental record on return to remand after remand by the United States Supreme Court.
"Trial R. __" refers to the reporter’s transcript in Johnson’s direct appeal. See Rule 28(g), Ala. R. App. P.
17. Trial counsel, during the penalty phase, failed to adequately prepare three mitigation witnesses who testified.
XI.
The appellant contends that he received ineffective-assistance-of-appellate counsel on the following grounds:
A.
[20] The following ineffective-assistance-of-appellate-counsel claims are procedurally barred from review:
1. That appellate counsel failed to object to the trial court’s improper consideration of criminal activity that had not resulted in a conviction to negate a statutory mitigating circumstance of no prior criminal history;
2. That appellate counsel failed to object to the manner of execution; and
3. That appellate counsel failed to raise on appeal that lethal injection and electrocution are unconstitutional per se and unconstitutional as performed by the State of Alabama.
Because the underlying arguments forming the basis of these ineffective-assistance-of-appellate counsel claims were raised and addressed on direct appeal, both on the merits and as grounds for claims of ineffective assistance of trial counsel, the trial court found that the aforementioned claims were precluded from review. Rule 32.2(a)(4), Ala. R.Crim. P.
B.
Johnson raised several claims regarding ineffective-assistance-of-appellate-counsel, which were dismissed by the trial court because there were insufficiently pleaded, pursuant to Rule 32.6(b), Ala. R.Crim. P. Those claims are as follows:
1. That appellate counsel failed to raise the claim that the State knowingly introduced false evidence;
2. That appellate counsel failed to raise the claim that the jury was improperly permitted to consider an aggravating circumstance for which there was no supporting evidence; 3. That appellate counsel failed to state specifically in the petition for rehearing in this Court, and in the petition for certiorari to the Alabama Supreme Court that this Court had applied the wrong standard of review on Johnson’s Batson claim;
4. That appellate counsel failed to supplement the record post-trial with the following items: evidence of the State’s inconsistent prosecution at the trials of Johnson and his codefendant; the presence of law enforcement officials; the race of prospective jurors; the names of the jurors who had prior arrests; and the juror strike sheet;
5. That appellate counsel failed to raise on direct appeal, the claim that the trial court’s instructions during the penalty phase were erroneous; and
6. That appellate counsel failed to raise a claim that this Court erred in finding that the evidence supported the jury’s finding that Deputy Hardy was "on duty" when he was murdered.
A review of the record indicates that Johnson failed to raise these claims with sufficient specificity.
XII.
The State agrees with Johnson that he sufficiently pleaded the following claims in his petition and, therefore, requests that the Court remand this cause to the trial court to conduct an evidentiary hearing on these particularized claims. The claims, numbered as they are in Johnson’s petition, are as follows:
XIX(E)(4). That trial counsel failed to object to, and file a motion to dismiss the case against Johnson, due to the State’s inconsistent theories of prosecution at Johnson’s and codefendant, Ardragus Ford’s trial;
XIX(E)(8). That trial counsel failed to order transcripts from the previous trials or to ask the court to provide them at no costs because of what Johnson says is his indigent status;
XIX(F)(l). That trial counsel failed to call several alibi witnesses who testified at Johnson’s first trial, which ended in a mistrial;
XIX(F)(2). That trial counsel failed to call several alibi witnesses who testified at codefendant Ford’s first trial;
XIX(F)(3). That trial counsel failed to call several alibi witnesses, who were never contacted by the investigator or trial counsel, even though they were known or could have been discovered through a competent investigation;
XIX(F)(4). That trial counsel failed to adequately prepare two alibi witnesses called at Johnson’s trial, and erred in choosing the particular witnesses, after considering their friendship and kinship to Johnson;
XIX(F)(5). That trial counsel failed to call Marshall Cummings, who testified at Johnson’s first trial;
XIX(F)(7). That trial counsel presented inconsistent and mutually exclusive defenses at trial without making any attempt to reconcile them;
XIX(F)(8). That trial counsel failed to establish how widely-publicized the reward offer was and that it would have been extremely unlikely for Violet Ellison to be unaware of the reward offer;
XIX(F)(9). That trial counsel called Yolanda Chambers as a witness, knowing her testimony was false;
XIX(F)(10). That trial counsel failed to call several witnesses, who would testify that Violet Ellison sat with Patricia Hardy, Deputy Hardy’s widow, during Ardragus Ford’s previous trials; XIX(F)(12). That trial counsel failed to object to the State’s introduction into evidence of the program from Deputy Hardy’s funeral;
XIX(F)(24). That trial counsel failed to call witnesses who would have testified that Fred Carter, an inmate, routinely impersonated Johnson, as well as other inmates, when talking to girls on the telephone, and "lied" about his crimes in an attempt to sound "tough"; and
XIX (H). That trial counsel failed to present any mitigating evidence at the sentencing hearing.
Additionally, the State, in its brief to this Court, responds that because the trial court did not mention the following claims in its order dismissing Johnson’s petition, the case must be remanded to the trial court to clarify the grounds under which they were dismissed:
XIX(F)(21). That trial counsel unreasonably failed to introduce evidence that Quintez Wilson was at a friend’s house at the time Deputy Hardy was killed, and could not have participated in the murder. Counsel unreasonably failed to introduce evidence that the State had dismissed all charges against Quintez Wilson, which evidence would have rebutted the State’s theory at trial that Johnson and Wilson committed the murder together.
XIX (F)(22). That trial counsel failed to introduce evidence that Omar Berry was at a friend’s house, along with Quintez Wilson, at the time Deputy Hardy was murdered, which evidence rebutted the State’s evidence that Johnson and Wilson committed the murder together;
XIX(F)(23). That trial counsel failed to seek to introduce Johnson’s audiotaped interrogation by police, to rebut Violet Ellison’s testimony;
XX (15). That appellate counsel failed to raise the claim that this Court failed to conduct an adequate proportionality review; and
XX (16). That appellate counsel failed to raise the claim that the Alabama Supreme Court’s alteration of Rule 39, Ala. R.App. P., violated his rights to due process and equal protection.
XIII.
Johnson has failed to raise on appeal the following claims contained in his Rule 32 petition: VII, VIII, XIII, XV, XIX(E)(6), XIX(E)(11), XX(2), XX(4), XX(5), XX(7), XX(13), XX (14), XX(17), XXIII, And XXIV. Because Johnson has failed to pursue these claims on appeal, they are not before this Court for appellate review. See McLin v. State, 840 So.2d 937, 943 (Ala. Crim.App.2002) ("Those claims that [the appellant] presented in his petition, but does not pursue on appeal are deemed to be abandoned").
Because of the foregoing deficiencies in the trial court’s order disposing of Johnson’s amended petition, we must remand this cause for further proceedings. On remand, the trial court shall conduct an evidentiary hearing on those claims and enter specific written findings, including any ground of preclusion, with regard to each of the claims presented at the hearing. The return to remand shall include a transcript of the proceedings. Return to remand should be made to this Court within 70 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
Wise, J., concurs. Baschab, P.J., and Shaw and Welch, JJ., concur in the result. On Return to Remand
JOINER, Judge.1a
ToForest Onesha Johnson, an inmate on death row at Holman Correctional Facility, appeals the circuit court’s dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.
In August 1998, Johnson was convicted of murdering Jefferson County Deputy Sheriff William G. Hardy, while Deputy Hardy was on duty or "because of some official or job-related act or performance." § 13A-5-40(a)(5), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Johnson be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Johnson to death. Johnson’s conviction and sentence were affirmed on direct appeal. See Johnson v. State, 823 So.2d 1 (Ala.Crim.App.), cert, denied, 823 So.2d 57 (Ala.2001). This Court issued the certificate of judgment, making the case final, on December 14, 2001. See Rule 41, Ala. R.App. P.
In April 2003, Johnson filed a timely postconviction petition in the Jefferson Circuit Court attacking his conviction and sentence.2a Johnson filed amended petitions in July 2003 and July 2004. The circuit court summarily dismissed Johnson’s third amended postconviction petition, and Johnson appealed to this Court. On September 28, 2007, this Court affirmed, in large part, the circuit court’s dismissal but remanded the case for that court to conduct an evidentiary hearing on 14 claims of ineffective assistance of counsel and for that court to address 5 claims that were not specifically addressed in the court’s order dismissing Johnson’s petition. See Johnson v. State, 379 So.3d 994 (Ala.Crim.App.2007). The circuit court has filed its return to remand with this Court, and new briefs have been submitted on behalf of Johnson and the State. We address only those issues raised in Johnson’s brief on return to remand.
The evidence supporting Johnson’s conviction was thoroughly detailed in this Court’s opinions on direct appeal and in our opinion on appeal from the dismissal of his Rule 32 petition; therefore, we will give only a brief synopsis of the facts. The State’s evidence tended to show the following. In July 1995 Deputy Hardy was "moonlighting" as a security guard at a Birmingham hotel and was working the night of July 18-19, 1995. At around 12:30 a.m. on July 19 the manager of the hotel heard two "popping noises" and attempted to contact Deputy Hardy by radio. When he was unable to reach Deputy Hardy, he walked around the building and found Deputy Hardy’s body lying in the rear parking lot. The medical examiner testified that Deputy Hardy died from multiple gunshot wounds to his forehead and jaw. Johnson was stopped by police in the parking lot of a motel in Homewood at approximately 4:00 a.m. on the morning of July 19, 1995, in a vehicle matching the general description of a vehicle seen leaving the hotel after Deputy Hardy was shot. Johnson was with Ardragus Ford, Latanya Henderson, and Yolanda Chambers. Henderson testified that she went with Johnson, Ford, and Chambers to eat at around 2:00 a.m. that morning, that Johnson had a gun with him, and that Johnson hid the gun under the dashboard when police approached his vehicle.
Testimony also showed that while incarcerated at the Jefferson County jail John- son made several telephone calls. State witness Violet Ellison testified that in August 1995 her daughter received telephone calls from the Jefferson County jail and her daughter would forward those calls to a third party and lay the telephone down and walk away. Ellison said that she listened in on one of those conversations and heard Johnson admit to a girl named Daisy that he shot Deputy Hardy in the head.
Standard of Review
Johnson initiated this postconviction proceeding pursuant to Rule 32, Ala. R.Crim. P. Rule 32.3, Ala. R.Crim. P., provides:
"The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."
"The standard of review this Court uses in evaluating the rulings made by the trial court [in a postconviction proceeding] is whether the trial court abused its discretion" Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005). "[W]e may affirm a circuit court’s ruling on a postconviction petition if it is correct for any reason." Smith v. State, 122 So.3d 224, 227 (Ala. Crim.App.2011).
[21] In Johnson’s direct appeal, this Court applied the plain-error standard of review and reviewed the claims Johnson raised regardless of whether the issues had been properly preserved for appellate review. See Rule 45A, Ala. R.App. P. The plain-error standard, however, does not apply to the review of the denial of a
postconviction petition challenging a death sentence. See James v. State, 61 So.3d 357 (Ala.Crim.App.2010). Accordingly, this Court will not consider Johnson's claims that have not been properly preserved for appellate review.
With these principles in mind, we review the claims Johnson raises in his brief on return to remand.
I.
Johnson first argues that the circuit court denied him a full and fair postconviction evidentiary hearing by denying certain motions he filed after this case was remanded. He raises several grounds in support of this contention.
A.
First, Johnson argues that the circuit court erred in denying his motion for discovery. In November 2007, Johnson filed a 25-page discovery motion requesting records from the Alabama Department of Human Resources related to Johnson and to his immediate family members; all jail records and records from the Department of Corrections related to Johnson; all mental-health records related to Johnson and his family members; all records related to Johnson from the Alabama Board of Pardons and Paroles; all records related to Johnson and his brother from the Alabama Department of Youth Services; all files from the Jefferson County juvenile court related to Johnson; all law-enforcement records related to Johnson and his family members; all prosecution files related to Quintez Wilson and Omar Berry; and all records from the Department of Corrections and from the Jefferson County coroner related to Investigator Steve Saxon. (Return to Remand, C. 112–30.) Johnson also moved for discovery of the institutional files of Fred Carter. The circuit court granted the motion for discovery of Carter’s files but denied the motion in all other respects. (Return to Remand, C. 211-12; 214-15.)
Wilson and Berry were two of Johnson’s codefendants.
In this Court’s opinion on return to remand, we held that counsel were not ineffective for presenting inconsistent defenses. See Johnson v. State, 379 So.3d at — (opinion on return to remand).
Johnson’s third amended petition is 281 pages long and consists of 450 numbered paragraphs.
In December 2019, the Innocence Project moved to file an amicus curiae brief in support of Johnson. (Supp. C. 106.) The Innocence Project included a brief with its motion, but the circuit court did not rule on the motion.
Trial counsel retained Saxon to assist in investigating Johnson’s case.
During the postconviction proceedings, Johnson presented affidavits from four jurors on Johnson’s case and four individuals working on the postconviction proceedings who had spoken to other jurors. Because no juror testified at the postconviction proceedings, none was subject to cross-examination.
Three months after the circuit court denied Johnson’s petition, the Jefferson County District Attorney filed an amicus curiae brief asking the circuit court to grant Johnson a new trial. After the State replied, the circuit court ruled that it did not have jurisdiction to consider the District Attorney’s request.
On appeal, Johnson asserts that this Court may consider the District Attorney’s amicus curiae brief because it "is a public document filed by a state actor." (Johnson’s reply, p. 2.) He cites Ex parte Davidson, 736 So. 2d 1146, 1148 (Ala. Crim. App. 1999), in which this Court took judicial notice of its own records. This Court’s authority to take judicial notice of its own records is well established. But Davidson does not establish that this Court may take judicial notice of the records of other courts. And Johnson cites no authority for his position that we should reverse the circuit court's judgment based on a brief filed with the circuit court after it had lost jurisdiction over the case.
Even if we were to consider the District Attorney’s brief, it is based on the premise that the State "paid [Ellison] $5,000 which was never mentioned during trial." (3d Supp. C. 11.) But payment of the reward could not have been mentioned during the trial because it did not happen until three years after the trial. And payment of the reward was not the basis of Johnson's Brady claim. His claim was that the State knew, but did not disclose, that Ellison testified against Johnson in the specific hope of obtaining the reward.
In the postconviction proceeding, Johnson alleged that Carter was an inmate at the Jefferson County jail at the same time as Johnson and was known to impersonate other inmates on the telephone.
The judge presiding over the postconviction proceeding was not the same judge who sentenced Johnson to death.
Although Barber’s letter states that Judge Bahakel's order is dated April 8, 2001, the order is dated August 8, 2001. (C. 475.) Barber's letter is dated August 7—the day before Judge Bahakel's order.
[22] When this Court remanded this case to the lower court we directed that court to hold an evidentiary hearing and to file its findings of fact within 70 days. We stated: "On remand, the trial court shall conduct an evidentiary hearing on those claims and enter specific written findings." This Court did not direct the circuit court to restart the proceedings or to allow discovery. By finding that Johnson was entitled to an evidentiary hearing on certain claims of ineffective assistance of counsel, we determined that Johnson had met his burden of pleading those claims. Allowing discovery, at this late juncture, would have exceeded the scope of this Court’s remand directions. "[A]ny act by a trial court beyond the scope of an appellate court’s remand order is void for lack of jurisdiction." Anderson v. State, 796 So.2d 1151, 1156 (Ala.Crim.App.2000).
Moreover, regarding the standard for discovery in postconviction proceedings, the Alabama Supreme Court stated in Ex parte Land, 775 So.2d 847 (Ala.2000):
"We agree with the Court of Criminal Appeals that ‘good cause’ is the appropriate standard by which to judge postconviction discovery motions. In fact, other courts have adopted a similar ‘good-cause’ or ‘good-reason’ standard for the postconviction discovery process. See [State v.] Marshall, [148 N.J. 89, 690 A.2d 1 (1997)]; State v. Lewis, 656 So.2d 1248 (Fla.1994); People ex rel. Daley v. Fitzgerald, 123 Ill,2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the goodcause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey’s Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that ‘an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.’ Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985).
"We emphasize that this holding — that postconviction discovery motions are to be judged by a good-cause standard — does not automatically allow discovery under Rule 32, Ala. R.Crim. P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lewis, supra, 656 So.2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida’s rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we are only recognizing that a trial court, upon a petitioner’s showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to ‘fish’ through official files and that it ‘is not a device for investigating possible claims, but a means of vindicating actual claims.’ People v. Gonzalez,
51 Cal.3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal.Rptr. 729, 776 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir.1986) (‘a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief), cert. denied, 482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala. R.Crim. P., which states:
" ‘The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’ "
775 So.2d at 852–53 (footnote omitted), overruled on other grounds, State v. Martin, 69 So.3d 94 (Ala.2011).
As the Illinois Supreme Court aptly stated in People v. Williams, 209 Ill.2d 227, 282 Ill.Dec. 824, 807 N.E.2d 448 (2004):
"[T]he circuit court has the inherent discretionary authority to order discovery in postconviction proceedings. [People v.] Fair, 193 Ill.2d [256] at 264, 250 Ill.Dec. 284, 738 N.E.2d 500 [(2000)]. This authority must be exercised with caution, because of the potential for abuse of the discovery process and because of the limited scope of postconviction proceedings. Fair, 193 Ill.2d at 264, 250 Ill.Dec. 284, 738 N.E.2d 500. Thus, discovery should be allowed only after the moving party demonstrates good cause for the request. Fair, 193 Ill.2d at 264-65, 250 Ill.Dec. 284, 738 N.E.2d 500, citing [People ex rei.] Daley [v. Fitzgerald], 123 Ill.2d [175] at 183, 121 Ill.Dec. 937, 526 N.E.2d 131 [(1988)]."
209 Ill.2d at 236, 282 Ill.Dec. at 830, 807 N.E,2d at 454.
[23] On appeal, Johnson first asserts that he was entitled to the social-history records, which he does not specifically identify, related to himself and his family members. In regard to discovery of social-history records that are not a defendant’s, this Court has stated:
"The Alabama Supreme Court in [Ex parte] Land, [775 So.2d 847 (Ala.2000),] did not address discovery as it relates to confidential files on individuals other than the petitioner. However, this Court has noted that Alabama law protects the confidentiality of DYS [Department of Youth Services] and DHR [Department of Human Resources] records. See §§ 12-15-100 and 12-15-101, and § 38-2-1, Ala.Code 1975. Because these records are confidential, the most a party is entitled to, upon a showing of good cause, is an in camera inspection of the documents by a circuit court. See Gibson v. State, 677 So.2d 233 (Ala.Crim.App. 1994). A party is not entitled to unfettered access to records that are not related to him and that are maintained by state agencies specifically charged with guarding the confidentiality of those records. See Jackson [v. State, 910 So.2d 797 (Ala.Crim.App.2005)]."
Ex parte Perkins, 920 So.2d 599, 605 (Ala. Crim.App.2005). Johnson was not entitled to the social-history records of his family members.
Second, Johnson asserts that he was entitled to the personnel files from the Alabama Department of Corrections and the Jefferson County coroner’s office related to Investigator Saxon. This Court in State v. Turner, 976 So.2d 508 (Ala.Crim. App.2007), considered whether a petitioner was entitled to discover the personnel files of a law-enforcement officer. In Turner, we adopted the prevailing view and held that, absent a showing of good cause, a petitioner is not entitled to discovery of the personnel files of a law-enforcement officer.
[24] More importantly, in this Court’s opinion remanding Johnson’s case we held that the circuit court correctly found that the claims related to Saxon were procedurally barred. A petitioner is not entitled to discovery related to a claim that is procedurally barred. See State v. Martin, 4 So.3d 1196 (Ala.Crim.App.2008). Thus, Johnson was not entitled to the requested discovery.
Third, Johnson asserts that he was entitled to the prosecution records and police files related to two of his codefendants — Quintez Wilson and Omar Berry. He argues that he was entitled to these documents because, he says, they would show that the cases against Wilson and Berry had been dismissed because they both had alibis. We disagree.
[25, 26] "A postconviction petitioner fails to show good cause supporting grant of discovery motion when the information is available through less intrusive sources." Dunaway v. State, 198 So.3d 530, 566 (Ala. Crim.App.2009). The outcome of Johnson’s codefendants’ cases was available through less intrusive means than by forcing the State to disclose its entire prosecution and police files. Johnson failed to establish good cause for the grant of discovery of this material because it was available through other means. See Jackson v. State, 910 So.2d 797 (Ala.Crim.App.2005).
For example, the two attorneys who represented codefendant Ardragus Ford executed affidavits; these affidavits discussed, in depth, the outcome of Ford’s case.
Bender testified that he had had six boxes of files related to Johnson’s case but was not in possession of those files because he had given them to appellate counsel.
Section 15-9-1, Ala. Code 1975, provides that, for certain crimes,
"the Governor, upon application of the district attorney in the county in which it shall have been committed, may offer publicly a reward not exceeding $10,000.00 to the person who shall give information leading to the arrest and conviction of the guilty person; provided, however, that in cases involving murder, attempted murder, assassination or attempted assassination of any member of the judiciary, public or state official or any law enforcement officer, the Governor may increase the reward up to a maximum of $10,000.00. Any such reward shall be paid to the informer by the state by order of the court before which such conviction is had."
For the foregoing reasons, we find no error in regard to this claim.
B.
Johnson next argues that the circuit court erred in denying his motion for funds to hire a social worker, Dr. Elizabeth Beck, and a clinical psychologist, Dr. Karen Salekin, and to allow them to testify at the postconviction evidentiary hearing.
In December 2007 after this case was remanded to the circuit court, Johnson moved that the postconviction court approve the expenditure of $5,000 to secure the services of Dr. Beck. (C. 138-49.) Johnson filed a second motion seeking the approval of $5,000 to hire Dr. Salekin. The circuit court denied both motions. (C. 214.)
[27] In this Court’s opinion remanding this case to the lower court we held: "Because the law is clear that Rule 32 petitioners are not entitled to funds to hire experts to assist in postconviction litigation, ex parte or otherwise, the trial court did not err in denying the motion. Boyd v. State, 913 So.2d 1113 (Ala.Crim.App. 2003)." Johnson, 379 So.3d at 1013. The issue of the appointment of experts in this postconviction proceeding was addressed in our original opinion and "[o]n remand, the issues decided by the appellate court become law of the case." Ellis v. State, 705 So.2d 843, 847 (Ala.Crim.App.1996).
[28, 29] Moreover,
"[s]ince a post-conviction petitioner does not have a constitutional right to appointed counsel (People v. Porter, 122 Ill.2d 64, 73-75, 118 Ill.Dec. 465, 521 N.E.2d 1158 (1988)), there is no constitutional obligation to provide post-conviction counsel with investigative resources. See People v. Wright, 149 Ill.2d 36, 58-62, 171 Ill.Dec. 424, 594 N.E.2d 276 (1992). Where no constitutional right is implicated, the decision to appoint an expert, or to authorize funds to hire an expert, rests within the sound discretion of the circuit court. See People v. Hall, 157 Ill.2d 324, 339–40, 193 Ill.Dec. 98, 626 N.E.2d 131 (1993); Wright, 149 Ill.2d at 54–58, 171 Ill.Dec. 424, 594 N.E.2d 276."
People v. Richardson, 189 Ill.2d 401, 422, 245 Ill.Dec. 109, 122, 727 N.E.2d 362, 375 (2000). See also State v. Dean, 149 Ohio App.3d 93, 96–97, 776 N.E.2d 116, 118 (2002) ("A petitioner in a postconviction proceeding is not entitled to the appointment of either an attorney or an expert witness to assist in discovery.").
For the above reasons, the circuit court did not abuse its discretion in denying Johnson’s motion for approval of funds to hire a social worker and a clinical psychologist.
C.
Johnson next argues that the postconviction court erred in denying his request to present evidence concerning Investigator Saxon at the evidentiary hearing.
[30] In this Court’s opinion remanding this case, we held that the claim that counsel was ineffective for entrusting the investigation of Johnson’s case to a "brain-damaged, suicidal, racist, alcoholic homeless man was procedurally barred because … the claim had been raised and addressed on direct appeal" Johnson, 379 So.3d at 1015. This Court affirmed the circuit court’s dismissal of the claims related to this issue. Accordingly, the circuit court acted in compliance with this Court’s remand instructions by not allowing the admission of evidence concerning this claim. Thus, we find no error.
D.
Next, Johnson argues that the postconviction court made several erroneous rulings at the postconviction evidentiary hearing that, he says, violated his constitutional rights.
[31] "The Alabama Rules of Evidence apply to Rule 32 proceedings." See Hunt v. State, 940 So.2d 1041, 1051 (Ala.Crim.App. 2005). As the Illinois Court of Appeals has stated:
"The rules of evidence are not abandoned during an evidentiary hearing on a postconviction petition. Whether or not evidence is admitted during any hearing is within the sound discretion of the trial court. Such rulings are not reversed unless there is a clear showing of abuse of discretion by the trial court."
People v. Jones, 360 Ill.Dec. 672, 686, 969 N.E.2d 482, 496 (Ill.App. 2012).
With these principles in mind, we review Johnson’s claims.
1.
Johnson first arpes that the circuit court erred in excluding the transcripts of his audiotaped statements to police because, he says, the statements were "relevant to Claim XIX(F)(3)." In Claim XIX(F)(3) in his petition, Johnson alleged that counsel was ineffective for failing to call alibi witnesses who were named in Johnson’s statements to police.
At the postconviction evidentiary hearing, Johnson questioned one of his trial attorneys, Erskine Mathis, about a statement Johnson had made to police. The following occurred:
"[Postconvietion counsel]: Your Honor, I would like to move Exhibit No. 29 into evidence.
"[Assistant attorney general]: For what purpose, Your Honor? I object to it as being immaterial and not relevant, I think Your Honor, that at trial Mr. Mathis and Mr. Bender tried to get these statements admitted into evidence under some argument of completion and Your Honor wouldn’t allow it. And I think it went up on appeal and it was affirmed. What is the purpose? [How] is this material?
"The Court: What is the purpose here?
"[Postconviction counsel]: It is relevant to what Mr. Bender and Mr. Mathis knew about what their client had said to the police, information that their client had provided to the police about who his alibi witnesses were, where he was that night, It was information that they certainly had at the time of trial.
"The Court: I will sustain the objection as to that statement. You can ask Mr. Mathis whatever you need to ask him.
"[Postconviction counsel]: I’m sorry. As to which statement? The whole statement can’t come in.
"The Court: Right. I am sustaining the objection as to that exhibit."
(Return to remand R. 172–73.) At the conclusion of Mathis’s testimony, postconviction counsel again moved that the transcript of Johnson’s statements be admitted, The circuit court again denied this motion. (Return to remand, Suppl. R. 190–01.)
[32] This Court will not reverse a judgment based on the unlawful admission or exclusion of evidence "unless … the error complained of has probably injuriously affected substantial rights of the parties." See Rule 45, Ala. R.App. P. Johnson suffered no prejudice as a result of the court’s ruling because the court allowed postconviction counsel to question Mathis about the entire contents of the transcripts. Also, at Johnson’s trial his attorneys attempted to introduce the contents of Johnson's statement but were unsuccessful. Attorney Darryl Bender, one of Johnson’s trial attorneys, testified that he and Mathis talked to many people who had seen Johnson at a nightclub the night of the murder. It was abundantly clear that counsel was aware of the contents of Johnson’s statements to police.
[33] Furthermore, the transcript of Johnson’s statement was correctly excluded because Johnson did not lay a proper foundation for its admission. "A typewritten transcript of a recorded conversation is admissible where the officer who listened to the conversation at the time of the recording testifies that the transcript accurately reflected the conversation." Hawkins v. State, 443 So.2d 1312, 1315 (Ala. Crim.App.1983). "[T]he general rule is that the typewritten transcripts have been held admissible in evidence if their accuracy and reliability is clearly established." 443 So.2d at 1315. Johnson failed to present testimony to satisfy the foundation requirements in regard to this evidence.
The circuit court did not abuse its discretion in excluding this evidence.
2.
Johnson next argues that the circuit court erred in not allowing Fred Carter’s entire file from the Department of Corrections ("DOC") to be admitted into evidence at the postconviction evidentiary hearing. Johnson pleaded that Carter was an inmate at the Jefferson County jail at the same time as Johnson, that he was known to impersonate other inmates on the telephone, and that counsel was ineffective for failing to present evidence indicating that Carter could have impersonated Johnson in the telephone conversation that Violet Ellison overheard and as to which she testified.
The record shows that during Mathis’s testimony, Johnson offered Carter’s entire DOC file into evidence. The State objected and the following occurred:
"[Assistant attorney general]: Mr. Bender testified extensively, Your Honor, concerning Mr. Carter and the fact that Mr. Carter, in Mr. Bender’s opinion, was not a bad witness for Mr. Johnson; as a matter of fact, he felt he was helpful.
"I wouldn’t object to the — there are two reports. Again, these are not incident reports. These are reports from the St. Clair County Correctional Facility which would have been part of the Department of Corrections record.
"The Court: Dated when?
"[Assistant attorney general]: One is dated February 6, 1997, and one is dated December 7, 1996, which are the only two that [Johnson’s counsel] has referred to in these entire records, indicating basically that Mr. Carter lied to a corrections officer on those two occasions. I don’t have a problem with those two going in.
"What I am trying to prevent, Your Honor — and apparently not doing a very good job of it — is to keep a record from getting voluminous, which every time I try to do that, it never does a lot of good. But I still keep trying. I will leave it to Your Honor.
"The Court: What is the response by the defense?
"[Postconviction counsel]: If the two incident reports are admitted as well as what is also contained in his correctional record — or authenticated copies — of that he was convicted for rape, robbery, sodomy, and burglary — and the rest is excluded, that is fine.
"….
"The Court: This is what I will do. With regard to 39 – –and we are trying to narrow down the pertinent part of that exhibit that the defense wishes to make part of the record. And in an effort to help keep the voluminous record not so voluminous, I will make a photocopy of these reports and other documents, including the affidavit verifying through Ms. [Kim] Thomas that this is a true and correct part of the Department of Corrections records; and we will make it as Defendant’s exhibit 39A and admit 39A in this case. I will give these back to you so that you can maintain them for your file."
(Return to remand, R. 303–06 (emphasis added).)
[34] The above quote shows that an agreement was reached pursuant to which the circuit court would admit the reports in Carter’s DOC file that were filed against Carter as a result of his lying to correctional officers. Johnson’s counsel agreed with the court’s method of handling this voluminous exhibit. Thus, Johnson has no adverse ruling from which to appeal. "[A]n adverse ruling is a prerequisite to appellate review. … " Roberts v. State, 579 So.2d 62, 65 (Ala.Crim.App.1991).
Moreover, even if the entire contents of Carter’s DOC file were relevant, Rule 403, Ala. R. Evid., specifically provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Carter’s entire DOC file was properly excluded pursuant to Rule 403, Ala. R. Evid. The circuit court did not abuse its discretion in excluding this evidence.
3.
Johnson next argues that the circuit court erred in denying his motion to admit into evidence Violet Ellison’s financial rec- ords. Although these exhibits were not admitted, they were marked and made a part of the record, and we have examined them. These exhibits comprise approximately 300 pages and consist of copies of bankruptcy court filings and other civil court filings for recovery of moneys from a Theodore Ellison and a Violet Ellison. The cases range in age from a 1977 civil action against Theodore Ellison to a 1996 action against Theodore Ellison. Only 3 of the 23 cases were dated after 1990 and half of the cases do not name Violet Ellison but name Theodore Ellison. Johnson was tried in 1998. The one exhibit that named Violet Ellison that was filed after 1990 shows that the case against her was dismissed.
The following occurred at the conclusion of the postconviction evidentiary hearing:
"The Court: All of these exhibits relate to the financial condition of [Violet Ellison]?
"[Postconviction counsel]: Yes.
"The Court: What numbers are you offering?
"[Postconviction counsel]: I am offering Number 5, I am offering Number 6, which is the matter of Theodore Ellison and Violet Ellison. They are husband and wife.
"I am offering number 7. The debtor is Theodore Ellison, who is married to Violet Ellison at the time. Violet Ellison is not named as an official debtor on Number 7.
"And then 8 through 27 are all cases involving Ms. Ellison.
"[Assistant attorney general]: Again, I object to anything that hasn’t got Ms. Ellison’s name on it to start with.
"As far as 7 through 27 — or 8 through 27 — I will have to go through them line by line, Judge, very quickly because some of the exhibits I got had absolutely nothing to do with Ms. Ellison. It may have had something to do with her husband, which there is no evidence that Theo is her husband. I am going to argue that today.
"The Court: There is no need for you to go through. I am going to deny the request for admitting Defendant’s exhibits 5 through 27.
"[Assistant attorney general]: Yes, sir."
(Return to remand, R. 306–09.)
[35] " ‘The admissibility of evidence, which has been challenged as irrelevant and remote, is within the sound discretion of the trial judge. A trial judge’s decision to admit or exclude such evidence will not be overturned on the appeal absent an abuse of his discretion.’ " Harvey v. State, 579 So.2d 22, 26 (Ala.Crim.App.1990) (quoting Primm v. State, 473 So.2d 1149, 1157 (Ala.Crim.App.1985)).
[36] Many of the exhibits are not certified copies and some are illegible. Johnson did not show that the exhibits involved the same Violet Ellison who testified at Johnson’s case. There was nothing presented at the postconviction hearing that showed that Ellison had a financial motive to testify at Johnson’s trial. These exhibits were not admissible because no proper foundation had been established and because they were irrelevant and remote. For these reasons, we find that the circuit court did not abuse its discretion in excluding these documents.
4.
Johnson argues that the circuit court erred in denying his motion to admit an affidavit executed by Mathis. During Mathis’s testimony, Johnson attempted to introduce an affidavit that had been executed by Mathis before the evidentiary hearing. The State objected and argued that it had no notice of the affidavit and that it questioned its purpose given that Mathis was currently testifying. The circuit court sustained the State’s objection and did not allow the affidavit to be admitted into evidence. (Return to remand, R. 168–69.)
[37] Rule 32.9(a), Ala. R.Crim. P., states, in pertinent part: "The court in its discretion may take evidence by affidavits … in lieu of an evidentiary hearing …. " When addressing the scope of this Rule, this Court has stated:
"Rule 32.9(a), Ala. R.Crim. P., is discretionary, not mandatory and leaves the question of the admission of evidence by affidavits to the discretion of the trial court. This Court has upheld a circuit court’s exclusion of affidavits when those affidavits were introduced for the first time at the Rule 32 evidentiary hearing."
Hunt v. State, 940 So.2d 1041, 1050 (Ala. Crim.App.2005). The circuit court did not err in excluding the affidavit because the State had not been served with a copy of the affidavit. See Hunt, supra.
[38, 39] Moreover, in his brief on return to remand, Johnson argues for the first time that the affidavit was admissible under Rule 801(d)(1)(A), Ala. R. Evid., because, he says, it was a prior inconsistent statement. Johnson did not make an offer of proof concerning this affidavit. "The appellant failed to make an offer of proof. Thus, this issue is not preserved for our review." Knight v. State, 710 So.2d 511, 518 (Ala.Crim.App.1997).
In his brief on return to remand, Johnson attaches a copy of the affidavit, However, "attachments to briefs are not considered part of the record and therefore cannot be considered on appeal." Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991).
Bender's attorney-fee declaration specified that he spent 57 hours investigating possible mitigating evidence.
Johnson repeatedly cites what he says was the prosecution’s use of inconsistent theories. More than a decade ago, Johnson had a chance to prove his claim alleging that his trial counsel was ineffective for not objecting to the State's use of what Johnson said were inconsistent theories in Johnson's trials and the trials of his codefendant Ardragus Ford. This Court’s 2013 opinion on return to remand affirmed the circuit court's judgment denying that ineffectiveness claim because the underlying claim had no merit. We stated:
"There is no due-process violation when the State argues at one trial that one codefendant shot the victim and at the codefendant’s trial argues that that codefendant shot the victim.
" ‘When it cannot be determined which of two defendants’ guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecutor’s argument at both trials that the defendant on trial pulled the trigger is not factually inconsistent. Thus, because there was evidence that supported both theories, and since [the defendant] could have been convicted of aiding and abetting under either theory, we find no error.’
"United States v. Paul, 217 F.3d 989, 998-99 (8th Cir. 2000)." Johnson, 379 So. 3d at 1033–34.
We also note that, at his second trial, Johnson presented the testimony of two alibi witness who said they saw Johnson at a nightclub on the night of the murder and a witness, Yolanda Chambers, who testified that she was with Johnson and Ardragus Ford on the night of the murder. Chambers testified that she had lied when she had testified before that Quintez Wilson, Omar Berry, and Johnson had fired the shots that killed Hardy; Chambers testified at Johnson’s second trial that she had seen Ford kill Hardy. (Trial. R. 745-46, 762, 785-86.) After an evidentiary hearing, the circuit court denied Johnson’s claim that counsel was ineffective for presenting the testimony of Chambers and the alibi witnesses. This Court’s 2013 opinion also affirmed the judgment denying that claim.
For these reasons, we find no error in the circuit court’s ruling excluding Mathis’s affidavit.
5.
[40] Johnson next argues that the circuit court erred in denying his motion to admit the transcript of Ardragus Ford’s second trial. Johnson argues, in one paragraph in his brief to this Court, that this transcript was relevant to his claim that counsel was ineffective for failing to argue the State’s inconsistent theories in Ford’s and Johnson’s trials.
Other evidence in the record detailed the inconsistent State theories at both trials. For example, the record includes affidavits from Richard Jaffe and J. Derek Drennan, the attorneys who represented Ford in his two trials. Both affidavits detail the State’s inconsistent theories in Ford’s and Johnson’s cases. Also, it appears that the contents of a great deal of Ford’s second trial were attached to various affidavits and the transcript of Ford’s first trial was admitted into evidence. This Court can find no error that harmed Johnson. "The Alabama Supreme Court has held that the exclusion of admissible evidence ‘does not constitute reversible error’ if the evidence ‘would have been merely cumulative of other evidence of the same nature, which was admitted.’ Ex parte Lawson, 476 So.2d 122 (Ala.1985)." Craft v. State, 90 So.3d 197, 221 (Ala.Crim.App. 2011). Thus, we find no error in the circuit court’s ruling excluding the transcript of Ford’s second trial from the postconviction proceedings.
E.
Johnson next argues that the circuit court denied him due process by not allowing him to respond to the State’s answer to his submission of 26 affidavits. He further asserts that the circuit court erred by adopting, in its order denying relief, portions of the State’s answer.
The record shows that in March 2008, Johnson moved that he be allowed to proceed in the postconviction proceedings by the use of affidavits and that he had 20 witnesses whom he expected to execute affidavits. The State objected. Johnson then modified his request and stated that he intended to call Johnson’s two trial attorneys to testify at the postconviction evidentiary hearing. The circuit court allowed Johnson to proceed by the use of affidavits concerning the claims related to the alibi witnesses and the claims related to inmate Fred Carter. (C. 242.) Johnson then filed a notice stating that he intended to present additional affidavits than those that the court stated it would consider. In all, Johnson submitted 26 affidavits. (C. 534–891.) Many of the affidavits had extensive attachments that included portions of Johnson’s trial records and the trial records of one of his codefendants, Ardragus Ford. The circuit court specifically denied Johnson’s motion to include the transcript of Ford’s second trial. The circuit court stated that after Johnson filed his affidavits the State would be allowed to file any response it deemed necessary.
[41] In his brief on return to remand, Johnson cites no caselaw in support of this due-process argument. In Johnson’s reply brief, however, he relies on the case of Ex parte Fountain, 842 So.2d 726 (Ala.2001). In Fountain, the Alabama Supreme Court held that Fountain was denied procedural due process because on appeal from the circuit court’s ruling denying his postconviction petition the State failed to serve him with a copy of the State’s brief. In reaching this conclusion, the Supreme Court stated:
"Rule 31, Ala. R.App. P., requiring that each party’s brief or briefs be served on each other party, is formulated to achieve precisely the goal of fundamental fairness that is the essence of due process. An appeal is a debate between the parties to the appeal. That debate is hardly fair if either party presents that party’s arguments ex parte, so that the opponent cannot know what to answer, and if the appellate court considers those ex parte arguments and decides the appeal without affording the opponent a fair opportunity to respond. Rather, each party is due ‘information as to the claims of the opposing party, with reasonable opportunity to controvert them,’ Ex parte Weeks, [611 So.2d 259 (Ala.1992)], as Rule 31 provides. The requirement for appellate due process in the serving of briefs transcends the merits of the appeal."
842 So.2d at 730. Compare Yeomans v. State, 195 So.3d 1018, 1056 (Ala.Crim.App. 2013) (holding that Yeomans was denied the opportunity to file affidavits or otherwise respond to the State’s affidavit supporting Yeoman’s claim of juror misconduct).
The situation in this case is not analogous to that presented to the Alabama Supreme Court in Fountain. Here, the State filed a post-evidentiary response to Johnson’s presentation of 26 affidavits — some of which were beyond the scope of what the circuit court stated it would consider. The circuit court stated that it would consider affidavits only in relation to two claims — the alibi-witnesses claim and the claim related to inmate Carter. Johnson then filed a notice informing the court that he intended to present affidavits related to other issues. Johnson concedes that, unlike the situation in Fountain, he was given notice of the State’s response. Johnson had previously filed three different postconviction petitions and the State had filed responses to the first two petitions. This case was not in the circuit court on original submission of Johnson’s postconviction petition but was on remand with explicit instructions from this Court. The State did not file any affidavits in response to Johnson’s 26 affidavits but again, as it had on two previous occasions, argued why Johnson was due no relief. The circuit court was limited to complying with our instructions by making findings of fact. Johnson had an opportunity to object to the circuit court’s findings when he filed a motion objecting to the circuit court’s order. For these reasons, we find no error in regard to this claim.
[42] In this section of Johnson’s brief, Johnson also argues that the circuit court erred by adopting portions of the State’s response to the affidavits in its order denying relief on remand.
After the circuit court issued its order, Johnson objected to the order. (Return to Remand, C. 925–30.) Johnson argued that the order adopted, in part, a portion of the State’s response and that doing so was error.
In Johnson’s brief on return to remand, Johnson fails to identify the portion or portions of the circuit court’s order he specifically challenges on appeal. This issue fails to comply with the briefing requirements of Rule 28(a)(10), Ala. R.App. P. Rule 28(a)(10) states, in part, that the brief shall include:
"An argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on."
"Failure to comply with Rule 28(a)(10) has been deemed a waiver of the issue presented." C.B.D. v. State, 90 So.3d 227, 239 (Ala.Crim.App.2011). Thus, Johnson has waived this issue.
Moreover, the only portion of the circuit court’s order that is similar to the State’s response is contained in the issue that counsel was ineffective for failing to call witnesses who would have testified that Fred Carter impersonated other inmates. Two small paragraphs in this section of the court’s order are similar to the State’s response to the affidavits. The circuit court, however, also wrote two additional pages of findings on this issue. Thus, we find no error in regard to this claim.
II.
Johnson next argues that the circuit court erred in denying his claims of ineffective assistance of trial counsel.
[43] To prevail on a claim of ineffective assistance of counsel a petitioner must satisfy the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must establish: (1) that counsel’s performance was deficient; and (2) that the petitioner was prejudiced by counsel’s deficient performance. As the United States Supreme Court in Strickland stated:
"Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133–34, [102 S.Ct. 1558, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, , at 101[, 76 S.Ct. 158, 100 L.Ed. 83 (1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052.
"[T]he purpose of ineffectiveness review is not to grade counsel’s performance. See Strickland [v. Washington], [466 U.S. 668,] 104 S.Ct. [2052] at 2065, [80 L.Ed.2d 674 (1984)]; see also White v. Singletary, 972 F.2d 1218, 1221 (11th Cir.1992) (‘We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.’). We recognize that ‘[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.’ Strickland, 104 S.Ct. at 2067. Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’ Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987).
"….
"Because the reasonableness of counsel’s acts (including what investigations are reasonable) depends ‘critically’ upon ‘information supplied by the [petitioner]’ or ‘the [petitioner]’s own statements or actions,’ evidence of a petitioner’s statements and acts in dealing with counsel is highly relevant to ineffective assistance claims. Strickland, 104 S.Ct. at 2066. ‘[An] inquiry into counsel’s conversations with the [petitioner] may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.’ Id. (‘[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’)."
Chandler v. United States, 218 F.3d 1305, 1313–19 (11th Cir.2000) (footnotes omitted).
Here, attorneys Darryl Bender and Erskine Mathis represented Johnson at trial. Both attorneys testified at the postconviction evidentiary hearing. Bender testified that he was appointed to represent Johnson before Johnson’s first trial, which ended in a mistrial after the jury was unable to reach a verdict. Mathis testified that he was appointed in 1997 after one of Johnson’s attorneys passed away. Bender represented Johnson in both of his trials.
A.
[44] First, Johnson argues that his counsel was ineffective because, he says, counsel failed to object to the State’s presentation of inconsistent theories in Johnson’s trials and the trials of his codefendant Ford. At Johnson’s trials, the State’s theory was that Johnson shot Deputy Hardy. At Ford’s trials the State presented evidence that Ford shot Deputy Hardy and that Johnson was present when Deputy Hardy was shot.
Johnson argued in his third amended petition that his trial counsel was ineffective because
"[c]ounsel did attempt to argue to the jury that the State was relying on inconsistent theories of prosecution in its cases against Mr. Johnson and Mr. Ford, R. 947–49, but unreasonably failed to present any evidence of the inconsistent prosecution theories (to the extent it existed at the time), such as transcripts and pleadings from previous trials, and unreasonably failed to file a motion to dismiss the case on that ground. Had counsel raised this claim, there is a reasonable probability that the result of the proceedings would have been different, because the State would have been precluded from proceeding on inconsistent theories."
(C. 1328.)
This Court has taken judicial notice of the record of Johnson’s direct appeal. See Nettles v. State, 731 So.2d 626, 629 (Ala. Crim.App.1998). Counsel did move for a transcript of the trials of Johnson’s codefendants, Omar Berry and Ardragus Ford. A notation on the front of this motion states that the motion was granted as to the witnesses who were to be identified by Johnson’s counsel. (Trial record, C. 60.) Also, Mathis testified that he was present at Ford’s trial for 1 or 2 days.
In its order denying relief, the circuit court noted that this claim had been addressed on direct appeal and that it had no merit. The circuit court stated:
"[E]ven if the prosecution argued different theories concerning the killing of Deputy [William] Hardy, such theories do not amount to a violation of due process. 'Given the uncertainty of the evidence, it was proper for the prosecutors in the other co-defendant’s cases to argue alternate theories as to the facts of the murder. The issue of whether the particular defendant on trial physically committed the murder was an appropriate question for each of the co-defendants’ juries.’ Parker v. Singletary, 974 F.2d 1562[, 1578 (11th Cir.1992)]."
(Return to remand, C. 911.)
Many courts have recognized that the government may argue inconsistent theories in cases involving multiple defendants. In addressing this issue, federal courts have upheld the State’s presentation of inconsistent evidence in codefendants’ trials. The United States Court of Appeals for the Fifth Circuit has stated:
"[The defendant] arpes that his constitutional due process rights were violated when the government presented inconsistent theories at two criminal trials – – namely, at Cooper’s [codefendants’] trial the government argued that Cooper shot Marshall, and at [the defendant’s] trial, the government argued that [the defendant] shot Marshall. We have held, though, ‘a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause.’ Beathard v. Johnson, 177 F.3d 340, 348 (5th Cir.1999); see also Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.1995) (‘Two things, however, may be said about the rather amorphous doctrine of judicial estoppel. First, there is no indication in the authorities that it is constitutionally mandated. Second, it has apparently never been applied against the government in a criminal case.’). In any event, the inconsistencies were immaterial to the conviction since [the defendant] could have been convicted for the same offense, carjacking resulting in death and aiding and abetting the same, under both theories. See United States v. Paul, 217 F.3d 989, 998–99 (8th Cir. 2000) (When it cannot be determined
which of two defendants’ guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecution’s argument at both trials that the defendant on trial pulled the trigger is not factually inconsistent.’); cf. Bradshaw v. Stumpf, 545 U.S. 175, 187, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (upholding a guilty plea where the defendant’s assertions of inconsistency related entirely to which individual shot the victim but where ‘the precise identity of the triggerman was immaterial to [defendant]’s conviction for aggravated murder.’)."
United States v. Frye, 489 F.3d 201, 214 (5th Cir.2007).
"Courts presented with situations where there are genuine evidentiary disputes as to who was responsible for a crime among various defendants have shown greater willingness to permit a prosecutor to argue inconsistent theories in separate trials. See Beathard v. Johnson, 177 F.3d 340, 348 (5th Cir.1999) (‘The record does not support such a claim. Price had two live eyewitnesses to the crime, both charged with capital murder and both accusing the other of being the most culpable…. Price, as well as every juror involved, knew that both of the stories could not have been true.’); Parker v. Singletary, 974 F.2d 1562, 1578 (11th Cir.1992) (‘But no due process violation occurred, because there was no necessary contradiction between the state’s positions in the trials of the three co-defendants. Given the uncertainty of the evidence, it was proper for the prosecutors in the other co-defendants’ cases to argue alternate theories as to the facts of the murder.’)"
United States v. Ganadonegro, 854 F.Supp.2d 1088, 1098 (D.N.M.2012).
Other state courts addressing this issue have reached the same conclusion.
"[W]e are in accord with the courts that hold that a due process violation will only be found when the demonstrated inconsistency exists at the core of the State’s case. Discrepancies based on rational inferences from ambiguous evidence will not support a due process violation provided the two theories are supported by consistent underlying facts. We recognize that the evidence presented at multiple trials is going to change to an extent based on relevancy to the particular defendant and other practical matters. The underlying core facts, however, should not change. The few courts that have found due process violations did so in cases where the inconsistencies were inherent to the State’s whole theory of the case or where the varying material facts were irreconcilable. It is this type of inconsistency that renders the conviction fundamentally unfair, thus violating due process."
Sifrit v. State, 383 Md. 77, 106, 857 A.2d 65, 82 (2004).
"Courts have … found no due process violation stemming from inconsistent arguments as to who was the killer in the relatively common circumstance where each defendant can be held equally guilty as an aider and abettor upon the same inconclusive evidence."
State v. Poe, 284 Neb. 750, 768, 822 N.W.2d 831, 845 (2012).
There is no due-process violation when the State argues at one trial that one codefendant shot the victim and at the codefendant’s trial argues that that codefendant shot the victim.
"When it cannot be determined which of two defendants’ guns caused a fatal wound and either defendant could have been convicted under either theory, the prosecutor’s argument at both trials that the defendant on trial pulled the trigger
is not factually inconsistent. Thus, because there was evidence that supported both theories, and since [the defendant] could have been convicted of aiding and abetting under either theory, we find no error."
United States v. Paul, 217 F.3d 989, 998-99 (8th Cir.2000).
Thus, because there is no merit to the legal theory underlying this claim of ineffective assistance, the claim was properly dismissed. See, e.g., Lee v. State, 44 So.3d 1145, 1173 (Ala.Crim.App.2009) (counsel cannot be ineffective for failing to raise a claim that has no merit).
B.
Second, Johnson argues that his trial counsel was ineffective for failing to investigate, discover, and present more alibi witnesses.
The circuit court made the following findings on this claim:
"These … claims were addressed in this Court’s previous order on Rule 32 wherein this Court held: ‘[Johnson’s] allegation that trial counsel unreasonably failed to call Kimberly Colvin,’ ‘to testify at [Johnson’s] second trial’ is an incorrect statement. The subpoena audit list for [Johnson’s] second trial set August 17, 1998, which was printed June 1, 1998, and is part of the court file, clearly shows trial counsel requested that subpoenas be issued to Kimberly Colvin, Barbetta Hunt, and Velonique Sanders, among others. The record is silent as to whether or not these individuals even responded to their respective subpoenas. If, in fact, the witnesses were present at trial and ready to testify, and trial counsel elected not to call them to the witness stand, it would be construed as trial strategy. Trial counsel presented two (2) alibi witnesses, Montrice Dunning and Christi Farris, who testified to seeing [Johnson] at a club called Tee’s Place at the time Deputy William Hardy was murdered. No reasonable purpose would have been served by presenting redundant testimony of three (3) additional witnesses. Trial counsel may have felt that witnesses Montrice Dunning and Christi Farris were more credible and convincing than Kimberly Colvin, Barbetta Hunt, and Velonique Sanders. Either way, [Johnson] has failed to meet his burden of proof relative to this claim.
"[Johnson] alleges that trial counsel was ineffective during the guilt phase of the trial by failing to call alibi witnesses who were never contacted by investigator Steve Saxon or trial counsel, including but not limited to Mona Abercrombie, Diedre Carter, Kenyarra Hubbard, Charles Jordan, Stanley Chandler, Katrina Davis, Tina Parker, David Battle, Randall Betts and Armenia Gosha. [Johnson’s] claim fails to meet the specificity requirements of Rule 32.6(b), Alabama Rules of Criminal Procedure; and [Johnson’s] speculations and conjecture do not rise to meet the standard established by Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. Additionally, [Johnson] has failed to rebut the presumption that counsel’s actions were sound trial strategy pursuant to Ex parte Womack, 541 So.2d 47, 66 (Ala.1988). [Johnson’s] claim is without merit and he has failed to meet the required burden of proof relative to this claim.
"Also, the issue of failure to call certain alibi witnesses was addressed on appeal wherein the Alabama Court of Criminal Appeal is quoted as follows: ‘Johnson maintains that this trial counsel were ineffective for not calling the three witnesses to testify in order to support his alibi defense.’ …
"After considering the testimony offered at the hearing in this cause there has been nothing to rebut the presumption that the decision by Johnson’s trial counsel to call certain alibi witnesses, rather than other witnesses of whom they were aware, was nothing more than sound trial strategy pursuant to Ex parte Womack, supra."
(Return to remand, C. 913–15.)
[45] The record supports the circuit court’s findings. Bender testified that they did not call the three alibi witnesses who testified at Johnson’s first trial because one of them had been convicted of "something" after Johnson’s first trial and one had an inconsistent version of the events that occurred on the evening of the murder. Two different alibi witnesses testified at Johnson’s second trial. During the cross-examination of Bender, the following exchange occurred:
"[Assistant attorney general]: Do you recall telling me, Mr. Bender, that you didn’t think it would have been beneficial to Mr. Johnson to parade a dozen or a dozen and a half witnesses from Tee’s Place, that you tried to collect your best alibi witnesses?
"[Bender]: Right. It wouldn’t have been. We talked to a bunch of people, some of them who claimed they had some knowledge: Oh, yeah, I saw him across the street at the car wash, yadda-yadda.
"We sort of pared it down to those witnesses who we believed best offered us the consistent testimony that sort of fit our theory. It would have been a mistake to march that many people in here with inconsistent sort of versions of what they saw and what happened. We just didn’t think it was the right thing to do, and so we didn’t."
(Return to remand, Suppl. R. 282–83.)
[46–49] "[I]n the context of an ineffective assistance claim, ‘a decision regarding what witnesses to call is a matter of trial strategy which an appellate court will not second-guess.’ " Curtis v. State, 905 N.E.2d 410, 415 (Ind.Ct.App.2009). "[T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney." Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir.2008). "Whether to call a particular witness is a tactical decision and, thus, a ‘matter of discretion’ for trial counsel." United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981). "[W]e do not substitute our judgment for that of trial counsel as to whether other alibi witnesses, if available, Would have been helpful." State v. Lowery, 318 N.C. 54, 69, 347 S.E.2d 729, 739 (1986).
"The question is whether some reasonable lawyer at the trial could have acted as defense counsel acted in the trial at issue and not what ‘most good lawyers’ would have done. Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir.2004) (internal citations omitted). Even if counsel’s decision appears to have been unwise in retrospect, the decision will be held to have been ineffective assistance only if it was ‘so patently unreasonable that no competent attorney would have chosen it.’ Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir.1983)."
Dingle v. Secretary for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir.2007). Johnson failed to meet his burden of establishing that counsel’s actions were unreasonable or that he was prejudiced by their performance. The circuit court correctly denied relief on this claim.
Johnson challenges the circuit court's application of a procedural bar to this claim. Although the postconviction court said that the claim was procedurally barred because it had been addressed on direct appeal, the court also addressed and considered the merits of this claim. This Court has long held that we may affirm a judgment entered by a postconviction court if the ruling is correct for any reason. "If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition." Acra v. State, 105 So.3d 460, 464 (Ala.Crim.App.2012).
To be sure, Johnson asks this Court to consider the conflicting theories of prosecution. But he does not challenge the circuit court's stated reason for refusing to do so. Thus, we will not review the circuit court’s refusal to consider those theories.
In his reply brief, Johnson argues for the first time that "[t]he court’s failure to consider the substance of [Ellison’s] testimony in the context of the other evidence at trial in assessing Ms. Ellison’s credibility was erroneous as a matter of law." (Johnson’s reply, p. 13.) This argument is not properly before us. See, e.g., L.J.K. v. State, 942 So. 2d 854, 869 (Ala. Crim. App. 2005) (" ‘[N]ew issues may not be raised for the first time in a reply brief.’ McCall v. State, 565 So. 2d 1163, 1167 (Ala. Crim.App. 1990).").
C.
Johnson next argues that counsel was ineffective for allegedly failing to prepare the two alibi witnesses who testified at Johnson’s second trial.
[50] Concerning this claim, the circuit court stated:
"After considering the testimony offered at the hearing from Johnson’s trial attorneys this Court does not find that said trial attorneys were Ineffective in the preparation of the alibi witnesses or the selection of the alibi witnesses. Said trial attorneys appeared to have done a very good job in preparing for and presenting a defense to the state’s claims. Johnson has failed to meet his burden of proof pursuant to Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)."
(Return to remand, C. 915.)
The record shows that neither Mathis nor Bender were asked any questions concerning their preparation of the two alibi witnesses who testified at Johnson’s second trial.
"When the record is silent as to counsel’s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. – Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State, 877 S.W.2d [768] at 771 [(Tex.Crim.App.1994)]). An appellate court will not speculate about the reasons underlying defense counsel’s decisions."
Stults v. State, 23 S.W.3d 198, 208 (Tex. App.2000). See also Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).
Johnson failed to meet his burden of proof in regard to this claim; thus, relief was correctly denied.
D.
Johnson next argues that his trial counsel was ineffective for presenting inconsistent and mutually exclusive defenses. At Johnson’s second trial, counsel presented two alibi witnesses and the testimony of Yolanda Chambers. The alibi witnesses testified that they saw Johnson at a nightclub on the night of the murder. Chambers testified that she was with Johnson and Ford on the night of the murder and that Ford shot Deputy Hardy.
The circuit court made the following findings of fact on this claim:
"Testimony presented at the hearing on the Rule 32 petition reflect that trial counsel was aware of the inconsistency of the theories of defense that were presented but strategically chose to do so. Trial counsel wanted to show that Johnson became a suspect because of the statements from Ms. Chambers and that she had offered many inconsistent statements. Trial counsel apparently sought to establish that the more reasonable explanation was that Johnson was at Tee’s Place [a nightclub] and could not have killed Deputy Hardy."
(Return to remand, C. 915.)
The Iowa Supreme Court in addressing the presentation of mutually exclusive defenses as it relates to a claim of ineffective assistance of counsel has stated:
"The general rule is that a criminal defendant may present diverse theories of defense, even those as ‘inconsistent’ as insanity and alibi. See 22 C.J.S. Crim
inal Law § 54, at 192–93 (1961) (‘[T]he fact that one defense is on the theory that accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses, although based on the theory of justification or excuse.’); see also 21 Am.Jur.2d Criminal Law § 183, at 337–38 (1981) (‘It is the right of an accused to utilize any and all defenses in his behalf, and to present as many defenses as he has or thinks he has.’).
"We have given at least tacit approval of the concept of inconsistent defensas in passing on a claim of ineffective assistance of counsel."
State v. Broughton, 425 N.W.2d 48, 50 (Iowa 1988).
"After a certain course has proven unsuccessful, it is easy to say some other one should have been tried instead. This is unfair to counsel, who must make a choice between existing alternatives before the fact. We have refused to assume the role of Monday morning quarterback in condemning counsel’s judgment in choosing between what are frequently equally hazardous options available to him."
State v. Newman, 326 N.W.2d 788, 795 (Iowa 1982). See also State v. Dickert, 268 P.3d 515, 520 (N.M.Ct.App.2011) ("As a general rule, ’inconsistent defenses may be interposed in a criminal case.’ 21 Am. Jur.2d Criminal Law § 183 (2008). ‘[A] defendant may raise the alternative defenses of intoxication and noninvolvement in the offense….’"); State v. Westmoreland, 307 Wis.2d 429, 440, 744 N.W.2d 919, 925 (App.2007) ("[I]t is not uncommon for lawyers to argue inconsistent defenses."); People v. Elliott, 8 Misc.3d 1020(A), 803 N.Y.S.2d 20 (2005) (not reported) ("While inconsistent defenses are permitted in New York and may constitute effective assistance of counsel, it is reasonable for a defense counsel to refuse to submit to a trier of fact inconsistent defenses."); Gluzman v. United States, 124 F.Supp.2d 171, 174 (S.D.N.Y.2000) ("Among the ‘virtually unchallengeable’ tactical decisions left to the judgment of trial counsel are determinations regarding the defense strategy adopted at trial."); Brown v. Dixon, 891 F.2d 490, 495 (4th Cir.1989) ("Filtering from our analysis the ‘distorting effects of hindsight’ and recognizing the ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ we agree that the use of inconsistent defenses was objectively reasonable ‘under prevailing professional norms.’"); Hunt v. Nuth, 57 F.3d 1327, 1332 n. 2 (4th Cir.1995) ("This Court has held … that the presentation of inconsistent defenses does not necessarily constitute ineffective assistance.").
[51] Bender represented Johnson in one trial that ended in a mistrial after the jury was deadlocked. Counsel made a strategic decision to present the two defenses in Johnson’s second trial. Based on the facts in this case, we cannot say that counsel was ineffective for presenting the two defenses. Johnson failed to meet his burden of establishing that counsel’s actions were unreasonable. Thus, relief was correctly denied on this claim.
E.
[52] Johnson argues that his trial attorneys were ineffective for failing to establish how widely publicized the reward offer was and whether Violet Ellison was aware of the reward.
The circuit court made the following findings on this claim:
"There was no evidence presented that the reward motivated Ms. Ellison to call the police or that it affected her testimony in any way. There certainly was no showing that Johnson was preju
diced in failing to cross-examine Ms. Ellison about any potential reward. Johnson’s claim is without merit and he has failed to meet the required burden of proof relative to this claim."
(Return to remand, C. 916.)
Bender testified that he had no reason to question Ellison about the reward because he had no information that she was aware of, or that she had inquired about, the reward. Bender said:
"There was nothing to indicate to me that [Ellison] was connected, associated with, looking for, going to receive a reward in any way; so there was no reason for me to pry into this lady’s financial affairs. There just wasn’t."
(Return to remand, Suppl. R. 258.) At the postconviction hearing, Johnson presented no evidence indicating that Ellison knew about the reward, that she attempted to get the reward, or that she received any reward for her testimony at Johnson’s trial. We agree with the circuit court that Johnson failed to satisfy the Strickland test in regard to this claim.
Postconviction counsel did present evidence, by way of affidavit, that Yolanda Chambers sought the reward money and hired an attorney for that purpose.
In a footnote, Johnson argues that this statement by the circuit court conflicts with this Court’s holding in its 2013 opinion on return to remand that Johnson’s trial counsel had no reason to ask Ellison about the reward because there was "no evidence [in the record] indicating that Ellison knew about the reward, that she attempted to get the reward, or that she received any reward for her testimony at Johnson’s trial." Johnson, 379 So. 3d at 1038. We see no conflict.
This Court's statement in 2013 addressed Johnson's claim that his trial counsel was ineffective for not "establishing how widely publicized the reward offer was and whether Violet Ellison was aware of the reward." Johnson, 379 So. 3d at 1037. As the circuit court found in its 2020 order, no evidence showed that Ellison knew about the reward, tried to get the reward, or received any reward until 2001. Trial counsel knew of no reason to ask Ellison in 1998 whether she knew about or had tried to get a reward, and, if counsel had asked her, she would have answered in the negative. Thus, it was not unreasonable for trial counsel not to ask Ellison questions that would have reinforced her stated motive for giving information to law enforcement.
F.
Johnson next argues that counsel was ineffective for calling Yolanda Chambers as a witness, knowing, he says, that her testimony would contradict Johnson’s alibi defense.
This claim is intertwined with Johnson’s allegation that counsel was ineffective for presenting inconsistent defenses, which we addressed in Part II.D. of this opinion.
The circuit court made the following findings concerning this claim:
"[Johnson’s] claim fails to meet the specificity requirements of Rule 32.6(b), Alabama Rules of Criminal Procedure. [Johnson’s] speculations and conjecture do not rise to meet the standard established by Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. Additionally, [Johnson] has failed to rebut the presumption that counsel’s actions were sound trial strategy pursuant to Ex parte Womack, 541 So.2d 47, 66 (Ala.1988). Testimony revealed that trial counsel called Chambers in order to explain to the jury and this Court why Johnson had been identified as a suspect in Deputy Hardy’s murder and to undermine the basis of the State’s case."
(Return to remand, C. 916.)
The record of the postconviction hearing shows that both attorneys were questioned as to why they called Chambers to testify in Johnson’s second trial. Bender testified to the following:
"Well, based on what I remember today, I believe that Ms. Chambers was called because she basically was the witness who put my client and the other — there were initially four defendants, and eventually it got down to two, my client and Mr. Ford.
"She was the individual who put them at the scene. And over the course of this litigation, from the beginning to the end, she told just a variation of stories and versions of the story.
"And based on what I can remember — and I am guessing, because I don’t have my file and this happened thirteen years ago — I think we wanted or hoped this jury would see that the State’s case was based or built on the testimony of this particular witness, with all of her inconsistencies and all of her versions of this story, is why I believe today we called her as a witness back in [1997], I guess, … when the second trial was."
(Return to remand, Suppl. R. 207.)
Johnson cites Freeman v. Class, 95 F.3d 639 (8th Cir.1996), and Commonwealth v. Tippens, 409 Pa.Super. 536, 598 A.2d 553 (1991). In Freeman, defense counsel offered into evidence a report that contained a hearsay statement that Freeman was guilty of stealing a car. In Tippens, defense counsel presented the testimony of an eyewitness who identified Tippens as the shooter. In both cases, the courts found counsel ineffective for presenting evidence that was detrimental to their clients.
[53] Here, the State presented evidence indicating that Johnson had been overheard on the telephone saying that he shot Deputy Hardy in the head. To counter this, Johnson presented the testimony of Chambers, who testified that Ford shot Deputy Hardy. "The standard we apply in assessing the first prong [of Strickland] is that of a reasonable attorney, not a paragon of the bar." Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir.2007). "Competency is measured against what an objectively reasonable attorney would have done under the circumstances existing at the time of the representation." Savino v. Murray, 82 F.3d 593, 599 (4th Cir.1996). "Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995). "The decisions of what witnesses to call and what evidence to present are generally unassailable matters of trial strategy that cannot form the basis of a claim of ineffective assistance of counsel." People v. Ward, 371 Ill.App.3d 382, 433, 308 Ill.Dec. 899, 946, 862 N.E.2d 1102, 1149 (2007). "[T]he decision whether to call a defense witness is a strategic decision. We must afford such decisions ‘enormous deference.’ " United States v. Kozinski, 16 F.3d 795, 813 (7th Cir.1994).
We cannot say that no reasonable attorney would have chosen to ignore Chambers’s testimony. We agree with the circuit court that Johnson failed to satisfy the Strickland standard in regard to this claim.
G.
Johnson next argues that counsel was ineffective for failing to call attorney Richard Jaffe at Johnson’s second trial after he had testified at Johnson’s first trial. At Johnson’s first trial, Jaffe, Ford’s attorney, testified that during Ford’s trial Ellison sat with the victim’s wife.
The circuit court made the following findings on this claim:
"The State responds that during her cross-examination, trial counsel had Ms. Ellison admit that she knew Deputy Hardy and his wife. Ellison testified that she would see the Hardys at the race track and that Ms. Hardy was a teller at the bank where Ellison did her banking. Johnson failed to argue or explain how he was prejudiced because his trial counsel did not present testimony that Ellison may have offered sympathy to Deputy Hardy’s grieving widow or to members of his family during Ford’s trial. See Brooks v. State, 695 So.2d 176, 182 (Ala.Crim.App.1996) (holding that ‘Prejudice cannot merely be alleged; it must be affirmatively proved.’)
"….
"Considering the testimony offered in connection with this claim there has been no showing of prejudice. Trial counsel was able to present testimony that Ms. Ellison knew the Hardy family as set out in the State’s response. Johnson has not met his burden of proof
relative to this claim and has not shown that his counsel was ineffective."
(Return to remand, C. 916-17.)
The record shows that at Johnson’s first trial, counsel called Jaffe to testify. Jaffe testified that Ellison sat next to the victim’s family during Ford’s trial. However, counsel did not call Jaffe to testify at Johnson’s second trial. The record of Johnson’s second trial shows that counsel cross-examined Ellison about her relationship with the victim. Ellison testified that she had known the victim’s wife, Patricia Hardy, for 10 or 12 years, that Patricia was a teller at the bank where Ellison banked, that she had met the victim through his wife about 5 years before the trial, and that Patricia was not a close friend of hers. (Record of trial, R. 705–06.) Also, in closing argument counsel argued that Ellison’s testimony should be ignored because she knew the victim’s wife.
[54] Mathis testified that he could not remember why counsel did not call Jaffe to testify at Johnson’s second trial. (Return to remand, Suppl. R. 1630–31.) Bender testified as follows:
"[Postconviction counsel]: Mr. Jaffe testified at Mr. Johnson’s first trial that Patricia Hardy and Violet Ellison were hugging and that Ms. Ellison was also comforting Ms. Hardy. Why didn’t you put that evidence on at the second trial?
"[Bender]: I guess you are asking me why didn’t we call Richard Jaffe as a witness again?
"[Postconviction counsel]: Yes.
"[Bender]: I can’t tell you why. I don’t know why. I am certain there is a reason why we didn’t; I just don’t remember what it was.
"[Postconviction counsel]: But you would have every reason to want to call Ms. Ellison’s veracity and credibility into question; right?
"[Bender]: It depends on the circumstances.
"[Postconviction counsel]: Well, her sitting and comforting the victim’s wife would not be something that calls into question her veracity or credibility?
"….
"[Postconviction counsel]: Why not call him the second time?
"[Bender]: I don’t know specifically why. I don’t have the record, so I can’t tell you why. But I am sure — I am sure — that was for a strategic reason that we didn’t. I don’t know why for certain because I don’t have my file, I don’t have the record. But there was a reason for it. I just can’t tell you twelve years later or eleven years later why it was."
(Return to remand, Suppl. R. 267–69.)
"Time inevitably fogs the memory of busy attorneys. That inevitability does not reverse the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] presumption of effective performance. Without evidence establishing that counsel’s strategy arose from the vagaries of ‘ignorance, inattention or ineptitude,’ Cox [v. Donnelly, 387 F.3d 193 (2nd Cir.2004)], Strickland’s strong presumption must stand."
Greiner v. Wells, 417 F.3d 305, 326 (2d Cir.2005). "[I]t is permissible for a court to rely on habit evidence of a lawyer’s usual practice in reconstructing events." Carrion v. Smith, 549 F.3d 583, 585 (2nd Cir.2008).
[55] Bender stated that he was confident that the decision to not call Jaffe at the second trial was a strategic decision. Johnson failed to establish that counsel was ineffective for failing to call Jaffe to testify at his second trial. Moreover, any testimony from Jaffe as to the relationship between Ellison and Patricia Hardy would have been largely cumulative of Ellison's own testimony, See, e.g., Daniel v. State, 86 So.3d 405, 430 (Ala.Crim.App.2011) (" ‘This Court has previously refused to allow the omission of cumulative testimony to amount to ineffective assistance of counsel.’ United States v. Harris, 408 F.3d 186, 191 (5th Cir.2005). ‘… [E]ven if alternate witnesses could provide more detailed testimony, trial counsel is not ineffective for failing to present cumulative evidence.’ Darling v. State, 966 So.2d 366, 377 (Fla. 2007)."). Thus, relief was correctly denied on this claim.
H.
Johnson next argues that trial counsel was ineffective for failing to object to the State’s introduction of the program from the victim’s funeral.
[56] The circuit court made the following findings concerning this claim:
"This Court previously held that Deputy William Hardy’s funeral program was introduced through the direct testimony of Sheriff Jim Woodard; and was obviously introduced as further proof to the jury that the victim was, in fact, deceased. As pointed out by the State in its response to [Johnson’s] claim, while [Johnson] alleges that the funeral program had no probative value and only served to prejudice the jury against him, he fails to state in what manner he was prejudiced or harmed by the introduction of the said program. [Johnson’s] claim fails due to lack of specificity when applied to Rule 32.6(b), Alabama Rules of Criminal Procedure, and he has failed to meet his required burden of proof relative to this claim."
(Return to remand, C. 917.) We agree that Johnson failed to plead how he was prejudiced by the introduction of the victim’s funeral program.
Moreover, Mathis testified that he could not. remember why he did not object to the State’s introduction of the victim’s funeral program. Bender was not asked why he did not object to the introduction of the funeral program. As stated above, "Time inevitably fogs the memory of busy attorneys. That inevitability does not reverse the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] presumption of effective performance." Greiner, 417 F.3d at 326. "[T]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel." State v. Hale, 119 Ohio St.3d 118, 892 N.E.2d 864 (2008). As this Court has stated:
" ‘[E]ffectiveness of counsel does not lend itself to measurement by picking through the transcript and counting the places where objections might be made. Effectiveness of counsel is not measured by whether counsel objected to every question and moved to strike every answer.’
"Brooks v. State, 456 So.2d 1142, 1145 (AJa.Crim.App.1984). As we further stated in Moore v. State, 659 So.2d 205, 209 (Ala.Crim.App.1994):
" ‘Objections are a matter of trial strategy, and an appellant must overcome the presumption that "counsel’s conduct falls within the wide range of reasonable professional assistance," that is, the presumption that the challenged action "might be considered sound trial strategy." Strickland [v. Washington], 466 U.S. [668] at 687–88, 104 S.Ct. [2052] at 2064, 80 L.Ed.2d [674] at 693 (1984). Again, the appellant has not shown how she was prejudiced by trial counsel’s failure to make objections.’ "
Robitaille v. State, 971 So.2d 43, 70 (Ala. Crim.App.2005).
Johnson failed to satisfy the Strickland test in regard to this claim; therefore, the circuit court correctly denied relief. I.
[57] Johnson next argues that counsel was ineffective for failing to call witnesses to testify that Fred Carter could have impersonated Johnson and made the telephone call that Ellison overheard from the Jefferson County jail.
The circuit court made the following findings concerning this claim:
"The State responds that Violet Ellison testified that on August 4 she overheard Johnson speaking to a woman named ‘Daisy.’ Trial counsel called Daisy Williams to testify for the defense. Williams testified that she had known Johnson from when they lived in Pratt City. Williams also testified about a telephone conversation she had with Johnson in August. Williams’s recall of the conversation was in stark contrast to what Ellison reported. Trial counsel’s strategy was to attack what Ellison claimed she overhead Johnson say to Williams. Johnson now claims that trial counsel should have discovered and presented an alternative defense — that what Ellison overheard could have been Fred Carter impersonating Johnson on the telephone.
"In Hunt v. State, 940 So.2d 1041, 1067 (Ala.Crim.App.2005), the Alabama Court of Criminal Appeals held:
" ‘ "[T]he mere existence of a potential alternative defense theory is not enough to establish ineffective assistance based on counsel’s failure to present that theory." Rosario–Dominguez v. United States, 353 F.Supp.2d [500] at 513 [(S.D.N.Y.2005)].’
"Trial counsel’s strategy to impeach Ellison’s testimony with the testimony of Daisy Williams was entirely reasonable. All of the affidavits submitted by Johnson to support this claim, with one exception, were executed by individuals that are currently in the custody of the Alabama Department of Corrections. Further, no affiant, not even Fred Carter, stated on the dates Violet Ellison said she overheard Johnson, that they heard Fred Carter impersonate Johnson.
"Attorney Darryl Bender testified that he was aware of Fred Carter and that Fred Carter established for the State that Johnson made the phone calls. Mr. Carter attempted to explain to the jury that Johnson was explaining what he was accused of not what he did. Attorney Bender felt that this helped the defense. Testimony further indicated that the trial attorneys were not aware of any alleged impersonations and there was no reason to challenge that the calls were made by Johnson. All of the evidence indicated that Johnson did make the calls. Said attorney testified that he considered all of the possibilities that were reasonable and attempted to explain away the phone calls by an impersonation was not reasonable. Attorney Bender also testified that he did talk to people at the jail about the contents of the phone calls but that he could not remember specifically.
"In Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] the Supreme Court established that a petitioner must show that counsel’s performance was deficient and that he was prejudiced by the said deficient performance. The Supreme Court found that ‘judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney perform- ance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client the same way.’ Strickland v. Washington, [supra]. Additionally, this Court would point out that ‘effective representation does not entitle the defendant to an error-free trial, and showing that counsel made a mistake unfavorable to the defendant is not sufficient to establish inadequate representation.’ Saffold v. State, 570 So.2d 727, 731 (Ala. Crim.App.1990).
"Johnson has not met his burden of proof in showing that his attorneys were ineffective."
(Return to remand, C. 918–21.)
Bender testified that Carter’s testimony at Johnson’s trial did not hurt Johnson’s case but helped his case. Bender said:
"[Carter] basically told the jury that our client was telling him what he was accused of — not what he actually did, but what he was accused of. And that was our argument relative to that telephone conversation.
"Our argument was that Ms. Ellison picked the phone up in the middle of the conversation; she heard certain things; she interpreted that as him saying he did, in fact, when, in fact, he was saying to the young lady that he was talking to, this is what they say I, did — not what I actually did, but this is what they say I did — as I remember it now."
(Return to remand, Suppl. R. 238–39.) Bender said that the defense theory was that Ellison did not overhear the entire conversation but that she heard only a portion of the conversation. Consistent with that theory, Bender and Mathis presented the testimony of Daisy Williams. Williams testified that in August 1995 her cousin, Fred Carter, telephoned her from the county jail, that she talked to Carter for a few minutes, and that Johnson then got on the telephone. She testified that she asked Johnson what he was in jail for and that he responded but he did not tell her that he had shot Deputy Hardy. Ellison testified that the first phone call she overheard was between a person named Johnson and a person named Daisy; it was in this conversation, Ellison said, that Johnson told Daisy that he had shot Deputy Hardy.
[58] "Impeachment strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance of counsel simply because in retrospect better tactics may have been available. Johnson v. Hofbauer, 159 F.Supp.2d 582, 607 (E.D.Mich. 2001)." Dell v. Straub, 194 F.Supp.2d 629, 651 (E.D.Mich.2002). Counsel’s action in calling Williams to rebut Ellison’s testimony was not unreasonable.
Furthermore, on direct appeal, this Court stated the following concerning counsel’s strategy:
"[T]he State introduced the telephone records to show that telephone calls were, in fact, placed from the Jefferson County jail to the home of Violet Ellison. The records showed that calls were placed from a number assigned to the 9th Floor, Block B, of the Jefferson County jail (where Johnson was housed)
to the telephone of Violet and Katrina Ellison. The records corroborate Violet and Katrina Ellison’s testimony regarding the dates and times of the calls from Johnson. As the State correctly points out in its brief to this Court, because Johnson was clearly unable to deny the existence of the telephone calls, his trial counsel obviously adopted a strategy of denying the content of the those calls, i.e., that Johnson admitted that he had shot Deputy Hardy. Johnson has failed to show that this was not sound trial strategy, especially given the overwhelming evidence presented by the State proving the existence of the calls."
Johnson failed to meet his burden of showing that counsel’s performance was deficient and/or that he was prejudiced by counsel’s performance.
III.
Johnson next argues that the circuit court erred in denying relief on his claims that had not been specifically addressed by the circuit court in its original order dismissing Johnson’s postconviction petition.
A.
[59] Johnson first argues that the circuit court erred in denying relief on his claim that counsel was ineffective for failing to present testimony that two of Johnson’s codefendants — Quintez Wilson and Omar Berry — were innocent. The circuit court made the following findings on this claim:
"[T]he Court finds that [Johnson’s] claim is insufficiently specific pursuant to Rule 32.6(b), Alabama Rules of Criminal Procedure, in that he fails to set forth anywhere in the record that it was conclusively established that Quintez Wilson was at some other location at the time of the murder and failed to state exactly what evidence trial counsel should have introduced to prove that Quintez Wilson was at a friend’s house during the time that Deputy William Hardy was murdered."
(Return to remand, C. 906.)
"It is axiomatic that trial counsel cannot be deemed ineffective for failing to introduce nonexistent evidence." Greene v. State, 295 Ga.App. 803, 806, 673 S.E.2d 292, 296 (2009). Johnson pleaded that counsel should have presented evidence that Wilson and Berry were innocent but failed to plead the contents of that evidence or the person or person who could testify to Wilson or Berry’s innocence. Thus, Johnson failed to plead sufficient facts. As this Court has stated:
" ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts."
Boyd v. State, 913 So.2d 1113, 1125 (Ala. Crim.App.2003).
Johnson failed to meet his burden of pleading sufficient facts in regard to this claim; thus, the circuit court correctly found that Rule 32.6(b), Ala. R.Crim. P., barred relief.
B.
Johnson next argues that the circuit court erred in finding that his claim that counsel was ineffective for failing to introduce his audiotaped statement to police was procedurally barred. Specifically, Johnson asserts that his exculpatory statement to police was admissible to rebut Ellison’s testimony and show that Ellison could and may have exaggerated what she heard.
[60–62] Although the circuit court found this claim to be procedurally barred, this Court may affirm a circuit court’s ruling if it is correct for any reason. Johnson’s self-serving statements to police were not admissible.
" ‘ "As a general rule, one charged with crime can not make evidence for himself, by proof of his own declarations." ’ Williams v. State, 536 So.2d 169, 170 (Ala.Crim.App.1988), quoting Stewart v. State, 63 Ala. 199, 200 (1879).
" ‘A "self-serving declaration" is a statement made out of Court which is favorable to the interest of the declarant. Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1950), rev’d on other grounds, 255 Ala. 128, 50 So.2d 774 [(1950)], aff’d, 255 Ala. 209, 50 So.2d 776 (1951). Of course, most statements made by rational people are self-serving. In Chisolm v. State, 409 So.2d 930 (Ala.Crim.App.1981), this court noted:
" ‘ "The law is well settled in this State that such self-serving declarations of an accused, made before or after the offense are not admissible for him unless they are part of the res gestae." (Emphasis added.)
" ‘The statement in the present case was not part of the res gestae….
" ‘Moreover, "[t]he prime objection to this character of proof is that it does violence to the hearsay rule. Further, it opens the door to the introduction of untrustworthy declarations and permits a party to manufacture his own evidence." Jarrell, supra. "If a self-serving declaration is inadmissible as tending to prove the truth of the matter asserted, the inadmissibility results from the hearsay rule." C. Gamble, McElroy’s Alabama Evidence, § 242.02 (3d ed. 1977).’
"Kennedy v. State, 469 So.2d 1333, 1334 (Ala.Crim.App.1985)."
Ray v. State, 80 So.3d 965, 990–91 (Ala. Crim.App.2011).
Johnson’s self-serving statements were not admissible. For these reasons, Johnson was due no relief on this claim.
C.
[63] Next, Johnson argues that the circuit court erred in finding that his claim that appellate counsel was ineffective for failing to challenge this Court’s proportionality review of his death sentence was not sufficiently pleaded.
Johnson’s entire argument in brief on this claim consists of the following: "Because these claims are in fact specifically pled, Mr. Johnson is entitled to a hearing on them, and this Court should remand for such a hearing." (Johnson’s brief, p. 108.) This section of Johnson’s brief fails to comply with the provisions of Rule 28(a)(10), Ala. R.App. P. This rule states that an argument section in an appellate brief shall contain: "An argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." "Failure to comply with Rule 28(a)(10) has been deemed a waiver of the issue presented." C.B.D., 90 So.3d at 239. Thus, Johnson has waived review of this claim on appeal.
D.
Johnson next argues that the circuit court erred in not allowing him to present evidence at the postconviction evidentiary hearing concerning his claim that counsel was ineffective for failing to call Marshall Cummings as a witness at Johnson’s second trial. Cummings was a guest at the hotel at the time of the shooting and testified in Johnson’s first trial as to what he observed that night. Specifically, Johnson asserts that this Court directed the circuit court to hold a hearing on this claim and that the circuit court, by finding that this claim was procedurally barred, failed to comply with our instructions.
The State concedes in its brief on return to remand that this case should be remanded for the circuit court to hold an evidentiary hearing on this claim. Consistent with our original opinion, this case is due to be remanded for the circuit court to comply with our instructions and to hold an evidentiary hearing on this claim.
E.
Johnson further argues that the circuit court erred in holding that his claim that counsel was ineffective at the penalty phase was procedurally barred, because, he says, counsel failed to investigate and to present mitigation evidence. Johnson asserts that this Court specifically directed the circuit court to hold a hearing on this claim and that the circuit court could not sua sponte apply a procedural bar to this claim because to do so violates Ex parte Clemons, 55 So.3d 348 (Ala.2007).
The Alabama Supreme Court in Clemons held that the State waives application of a procedural bar in Rule 32.2(a), Ala. R.Crim. P., if it fails to assert that bar. Here, the State not only failed to assert this procedural bar but specifically requested that this case be remanded on that claim of ineffective assistance of counsel.
In its original brief, the State conceded that Johnson was due an evidentiary hearing on his claim that counsel was ineffective for failing to present mitigation evidence. (State’s original brief, p. 100.) In accordance with the State’s concession, this Court, in our opinion remanding this case, specifically directed the circuit court to hold an evidentiary hearing on this claim. 379 So.3d at —. For the circuit court to apply this procedural bar at this juncture, after the State had waived that bar, violates Clemons and this Court’s explicit instructions in our opinion remanding this case.
For the reasons set out in Parts III.D and E of this opinion, this case is hereby remanded to the circuit court for that court to hold an evidentiary hearing on the claim that Johnson’s counsel was ineffective for failing to present the testimony of Marshall Cummings and the claim that counsel was ineffective for failing to investigate and present mitigation evidence.
Due return should be filed in this Court within 120 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.
On Return to Second Remand
JOINER, Judge.
ToForest Onesha Johnson appeals the circuit court’s dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.
In 1998, Johnson was convicted of murdering Jefferson County Deputy Sheriff William G. Hardy, while Deputy Hardy was on duty or "because of some official or job-related act or performance." Johnson was sentenced to death. On direct appeal, this Court affirmed Johnson’s capital-murder conviction and sentence of death. See Johnson v. State, 823 So.2d 1 (Ala.Crim. App.2001). The Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Ex parte Johnson, 823 So.2d 57 (Ala.2001), and Johnson v. Alabama, 535 U.S. 1085, 122 S.Ct. 1978, 152 L.Ed.2d 1035 (2002).
In 2003, Johnson filed a postconviction petition attacking his conviction and sentence. In 2006, the circuit court summarily dismissed Johnson’s petition. Johnson appealed to this Court. In 2007, this Court affirmed the dismissal of Johnson’s petition in part and remanded the case for the circuit court to hold an evidentiary hearing on 14 of Johnson’s claims of ineffective assistance of counsel and on 5 claims that were not specifically addressed in the circuit court’s order of dismissal. See Johnson v. State, 379 So.3d 994 (Ala.Crim.App. 2007). On return to remand, this Court again remanded the case for the circuit court to hold an evidentiary hearing on Johnson’s claims that trial counsel were ineffective for failing to call two witnesses1b to testify at his second trial and for failing to investigate and to present mitigation evidence at his sentencing hearing. See Johnson v. State, [Ms. CR–05–1805, June 14, 2013] — So.3d — (Ala.Crim.App. 2013) (opinion on return to remand). This case is now before this Court on return to second remand.2b
The facts surrounding Johnson’s conviction have been set out in this Court’s previous opinions; therefore, we will give only a brief account of the facts surrounding Deputy Hardy’s murder. In July 1995, Deputy Hardy was "moonlighting" at the Crown Sterling hotel in Birmingham and working the early morning hours of July 19, 1995. The manager of the hotel testified that at around 12:30 a.m. he heard two "popping noises" and was unable to reach Deputy Hardy by radio. He walked around the building and discovered Deputy Hardy lying in the rear parking lot. Deputy Hardy had been shot multiple times in his head. Johnson was stopped at a nearby motel in Homewood at around 4:00 a.m. When stopped, he was with Ardragus Ford, Latanya Henderson, and Yolanda Chambers. Henderson testified that Johnson had a gun and that he hid the gun as police approached the vehicle. Testimony also showed that Violet Ellison overheard a telephone conversation between Johnson and a girl named Daisy while Johnson was incarcerated. Ellison testified that during that conversation Johnson told Daisy that he had shot Deputy Hardy in the head.
At trial, Johnson presented both an alibi defense and the testimony of Yolanda Chambers. The alibi witnesses testified that they saw Johnson at a nightclub on the night of the murder. Chambers testified that she was with Johnson and his codefendant Ford on the night of the murder and that Ford shot Deputy Hardy.3b At the postconviction evidentiary hearing, Johnson’s trial attorneys, Darryl Bender and Erskine Mathis, both testified. Bender represented Johnson at his first trial, which resulted in a mistrial. Bender and Mathis represented Johnson at his second trial, which resulted in a conviction.
Standard of Review
[64] "[W]hen reviewing a circuit court’s rulings made in a postconviction petition, [the Court of Criminal Appeals] may affirm a ruling if it is correct for any reason." Bush v. State, 92 So.3d 121, 134 (Ala.Crim.App.2009). "If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the [postconviction] petition." Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).
"We will reverse a circuit court’s findings only if they are ‘clearly erroneous.’ Barbour v. State, 903 So.2d 858, 861 (Ala.Crim.App.2004).
" ‘ " ‘[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)…. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)." [Anderson v. City of Bessemer City, N.C.], 470 U.S. [564] at 573–74, 105 S.Ct. [1504] at 1511, [84 L.Ed.2d 518 (1985)].’
"Morrison v. State, 551 So.2d 435, 436–37 (Ala.Crim.App.1989); see also Barbour v. State, 903 So.2d at 862."
Jackson v. State, 963 So.2d 150, 154–55 (Ala.Crim.App.2006).
To prevail on a claim of ineffective assistance of counsel a petitioner must satisfy the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must establish: (1) that counsel’s performance was deficient; and (2) that the petitioner was prejudiced by counsel’s deficient performance. As the United States Supreme Court in Strickland stated:
"Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133–34, [102 S.Ct. 1558, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the chal
lenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, , at 101[, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."
Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
[65, 66] As the United States Supreme Court further stated:
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments."
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. The " ‘test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.’ " Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (quoting White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir.1992)).
"Time inevitably fogs the memory of busy attorneys. That inevitability does not reverse the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] presumption of effective performance. Without evidence establishing that counsel’s strategy arose from the vagaries of ‘ignorance, inattention or ineptitude,’ Cox [v. Donnelly], 387 F.3d [193] at 201 [(2d Cir. 2004)], Strickland’s strong presumption must stand."
Greiner v. Wells, 417 F.3d 305, 326 (2d Cir.2005).
With these principles in mind, we review the two claims that were the subject of the remand proceedings.
I.
Johnson argues that the circuit court erred in denying relief on his claim that his trial counsel were ineffective for failing to call Marshall Cummings and Sgt. Anthony Richardson to testify at Johnson’s second trial after both had testified at Johnson’s first trial, which had resulted in a mistrial.
At the postconviction evidentiary hearing, Johnson presented affidavits executed by Cummings and Sgt. Richardson and copies of the transcript of their testimony from Johnson’s first trial. Cummings testified that he was staying at the Crown Sterling hotel at the time of the murder and that he was awakened by people talking in the parking lot at around midnight. He said that about 15 minutes later he heard two gunshots and that he looked out the window of his hotel room. He testified that he saw an individual walking casually toward a car that was parked next to the hotel. The car was light-colored tan or copper-colored and was probably an Olds-mobile Cutlass or a Chevrolet. (This description did not match the car that Johnson was riding in on the night of the murder.) The person took his time to get in the car and drove away from the hotel. After the car drove away, Cummings saw Deputy Hardy’s body on the ground. Sgt. Richardson testified that when Johnson was arrested he was with Ardragus Ford, Yolanda Chambers, and Latanya Henderson in Ford’s automobile and that the driver’s side door of Ford’s car would not open.
The circuit court made the following findings concerning this claim:
"At the evidentiary hearing, Mr. Mathis testified he could not remember specifically why he and Mr. Bender did not call Mr. Cummings or Sgt. Richardson to testify at Johnson’s second trial.
"Mr. Bender, in contrast, testified that he did recall why Mr. Cummings and Sgt. Richardson were not called. Mr. Bender testified that he spoke to all of the jurors from Johnson’s first trial. Mr. Bender testified that these jurors told him that he and Mr. Mathis appeared desperate in suggesting that the individual Mr. Cummings saw was the person that murdered Deputy Hardy. Mr. Bender explained:
" ‘[The jurors] told me, what man would shoot a deputy sheriff between the eyes and leisurely walk away? Who would shoot a deputy sheriff between the eyes, get in his car in a leisurely sort of pace and just cruise out of the parking lot? Okay. And in talking to them and thinking about that, it made sense.’
"(H.R. 473)
"Mr. Bender also expressed his opinion concerning Mr. Cummings’s testimony that voices in the parking lot of the hotel woke him up. Mr. Bender explained:
" ‘So the conversation that Marshall Cummings heard was just like conversation you and I are having. It wasn’t loud…. He testified that the conversation he heard was just people just talking at a normal sort of level, if these people were talking at a normal sort of level and they were in the parking lot where Bill Hardy got killed, Mr. Cummings wouldn’t have heard it. They wouldn’t have woke him up.’
"(H.R. 475–76)
"Based on what jurors had told him, as well as his own opinion about Mr. Cummings’s testimony that voices in the parking lot had woken him up, Mr. Bender concluded that ‘Marshall Cummings didn’t offer anything, thus I didn’t call him again.’ "…. "While the affidavits presented by Johnson, concerning jurors’ memories of who they spoke to after the first trial, when asked by [Johnson] some 17 years later, may conflict with Mr. Bender’s testimony of when and where or if he spoke to jurors following his first trial, the affidavits do not refute Mr. Bender’s explicit testimony concerning his memory about how those jurors characterized the impact of Mr. Cummings’s testimony — that Mr. Cummings’s testimony made the defense look desperate. Further, Mr. Bender’s opinion that Mr. Cummings’s testimony that voices from the parking lot woke him up was not plausible was an additional reason for Bender’s decision not to call him at Johnson’s second trial. Mr. Bender testified that he agreed with the jurors’ assessment, that Mr. Cummings had not witnessed the person who was the shooter in this case. The Court also notes that the State had already called witness Larry Osborne to testify in the case-in-chief, who was also a guest at the hotel. His testimony at the second trial was very similar to that of Mr. Cummings; however, he described the car moving away with lights off after the shooting as a ‘light green or yellow’ GM model car. Cummings’s testi
mony would have been cumulative to Osborne’s testimony.
"Moreover, in addition to two alibi witnesses, this Court notes that at Johnson’s second trial, one of the alternative defenses Mr. Bender and Mr. Mathis presented was based on the testimony of Yolanda Chambers. Violet Ellison had been called by the State to give very damaging testimony from three-way jail calls, wherein Johnson was attributed to talking about the circumstances of the shooting and admitted to "I shot the f__ in the head and saw his head go back. He shouldn’t have been messing in my s__.’ Because of this testimony Ms. Chambers was called to testify by the defense in rebuttal. Ms. Chambers had not been called in the first trial, when Cummings and Sgt. Richardson were called by [Johnson]. She testified that, although Johnson was with her, 20 feet from where Deputy Hardy was shot, it was the codefendant Ardragus Ford, who shot the deputy for no reason. Chambers testified that although Johnson was present at the Crown Sterling [hotel] when Deputy Hardy was shot, Johnson was not involved in the shooting and he did not know the shooting was going to take place. See Johnson v. State, 823 So.2d 1, 12 (Ala.Crim.App. 2001). In fact, in light of [Johnson’s] eliciting this testimony from Ms. Chambers, after the testimony of Violet Ellison in the State’s case, the testimony of both Mr. Cummings and Sgt. Richardson was not necessary or relevant in the second trial, and even contradictory to Ms. Chambers’s testimony and [Johnson’s] theory of the case. Cummings’s testimony was also cumulative to that of State’s witness, Larry Osborne. This Court finds counsel’s decision not to call either of these two witnesses at the second trial to be a reasonable one. Additionally, having determined that Mr. Cummings’s testimony was not helpful, this Court further finds that Mr. Bender and Mr. Mathis were not ineffective for failing to call Sgt. Richardson to testify that the driver-side door of the car Johnson was in the morning he was arrested did not open, as Ms. Chambers testified to the condition of the driver’s door of the same car that Ardragus Ford was driving, occupied by her and Johnson at the crime scene, in [Johnson’s] case.
"….
"This Court finds that Johnson has not proven counsel either ineffective or unreasonable in not calling witnesses Cummings and Sgt. Richardson in the second trial. This Court further finds that based on the testimony in the second trial of Ms. Violet Ellison and Larry Osborne called by the State, and Ms. Chambers, and two alibi witnesses called by [Johnson], and based upon the testimony of Mr. Bender at the evidentiary hearing, the decision not to call these witnesses was one of sound trial strategy at the time. There has been no evidence presented to even suggest that calling these witnesses would have resulted in a different outcome according to the requirements set forth in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. To show prejudice, a petitioner must show that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, [466 U.S.] at 694 . This Court, therefore, finds that Johnson failed to prove that Mr. Bender and Mr. Mathis were ineffective for not calling either Mr. Cummings or Sgt. Richardson to testify at his second trial."
(Return to Second Remand, Second Suppl. C. 28–32.) [67, 68] Initially, we note that "[t]he decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel." Oliver v. State, 435 So.2d 207, 208–09 (Ala.Crim. App.1983).
" ‘Trial counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy.’ Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228, 232 (2010). ‘What defense to carry to the jury, what witnesses to call, and what method of presentation to use is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.’ State v. Miller, 194 W.Va. 3, 16, 459 S.E.2d 114, 127 (1995)."
Clark v. State, 196 So.3d 285, 306 (Ala. Crim.App.2015).
Mathis testified that he could not remember why he and Bender did not call Cummings to testify at Johnson’s second trial. Bender testified that he represented Johnson in his first trial and that he talked to the 12 jurors and the 2 alternates after the first trial. He said:
"One of the things that they told me was that we appeared desperate in trying to suggest that this guy that Marshall Cummings saw was the shooter when they said it was clear to them that he wasn’t. They told me, what man would shoot a deputy sheriff between the eyes and leisurely walk away? Who would shoot a deputy sheriff between the eyes, get in his car in a leisurely sort of pace and just cruise out of the parking lot? Okay. And in talking to them and thinking about that, it made sense."
(Return to Second Remand, R. 472–73.)
[69, 70] Counsel made a strategic decision not to call Cummings at Johnson’s second trial based on counsel’s conversations with the jurors from Johnson’s first trial. "[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). "[T]he decision whether to call a defense witness is a strategic decision. We must afford such decisions ‘enormous deference.’ " United States v. Kozinski, 16 F.3d 795, 813 (7th Cir.1994).
[71, 72] Johnson argues that Bender’s postconviction testimony conflicts with the affidavits of four jurors from Johnson’s first trial who stated that they did not talk to counsel; therefore, Johnson argues, counsel could not have made a strategic decision.4b However,
" ‘[w]hen conflicting evidence is presented … a presumption of correctness is applied to the court’s factual determinations,’ State v. Hamlet, 913 So.2d 493, 497 (Ala.Crim.App.2005). This is true ‘whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.’ Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166 (Ala.2018) (citations omitted). ‘The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses.’ Hope v. State, 521 So.2d 1383, 1387 (Ala.Crim. App.1988). Indeed, it is well settled that, in order to be entitled to relief, a postconviction ‘petitioner must convince the
trial judge of the truth of his allegation and the judge must "believe" the testimony.’ Summers v. State, 366 So.2d 336, 343 (Ala.Crim.App.1978). See also Seibert v. State, 343 So.2d 788, 790 (Ala. 1977)."
Clark v. State, 196 So.3d 285, 300 (Ala. Crim.App.2015). We must give deference to the circuit court’s findings of fact on this claim.
Moreover, at Johnson’s trial, Larry Osborne, also a guest at the Crown Sterling hotel, testified that at around 12:30 a.m. on July 19, 1995, he was awakened by what he thought were gunshots and that he walked to his window and observed a vehicle parked directly below his window. He said that the vehicle was a 1980s model Buick or Pontiac that looked greenish or grayish. On that evening, when Johnson was stopped by police he was in a 1982 black Chevrolet Monte Carlo automobile. Also, the last witness called by the State at Johnson’s trial was Officer James Evans, the officer who stopped Johnson on the evening of the murder. Defense counsel asked the following question:
"[W]e’ve had eyewitness testimony that the car that left the scene was an early ’80s model greenish or grayish automobile, 4–door, early ’80s. We had one policeman testify that he put out a BOLO for a white Caprice, late model, but neither of them knew anything about a 1982 black Monte Carlo. What I’m getting at is do you have any idea what the source of this information was?"
(Trial R. 588.) Counsel clearly showed that vehicles other than the vehicle Johnson was in when he was arrested were observed near the scene of the murder at the time of the murder. Indeed, the murder occurred in the parking lot of a hotel.
Also, on direct appeal, Johnson argued that his trial counsel were ineffective for failing to present the testimony of three witnesses who allegedly saw a vehicle leave the hotel parking lot shortly after the murder. In finding that counsel were not ineffective in this regard, this Court stated:
"[T]he mere fact that the descriptions of the vehicle these witnesses saw leaving the scene did not match the vehicle in which Johnson was later found does not support Johnson’s alibi defense. During trial, the State presented evidence that the police had received several different descriptions of vehicles allegedly seen leaving the rear parking lot of the hotel on the night of Deputy Hardy’s murder and that the police had issued numerous BOLOs for those different vehicles. Only one of these numerous BOLOs matched the vehicle in which Johnson was found the next morning, the BOLO for a black vehicle. Testimony from three additional witnesses regarding three additional descriptions of vehicles that did not match the vehicle in which Johnson was later found would have been cumulative and would have added nothing to Johnson’s defense.
"… [Johnson] further maintains that his counsel should have stressed, as part of their trial strategy, the numerous and varying descriptions of vehicles from witnesses. The record reflects, however, that trial counsel did, in fact, stress the differing descriptions of vehicles that were given by witnesses at the scene during opening statements and during cross-examination of several witnesses."
Johnson, 823 So.2d at 49–50.
The primary evidence presented by the State against Johnson at his second trial that had not been presented at his first trial was the testimony of Violet Ellison. Ellison testified that she overheard a telephone conversation between Johnson and a person named Daisy and that, during the conversation, Johnson confessed to shooting Deputy Hardy in the head. At Johnson’s second trial, counsel presented the testimony of Yolanda Chambers. Chambers testified that she was with Johnson and Ford on the evening of the murder and that Ardragus Ford—not Johnson—shot Officer Hardy. Based on the evidence that was presented at Johnson’s second trial, we cannot say that the failure to call Cummings to testify at Johnson’s retrial resulted in any prejudice to him.
[73, 74] Neither was Johnson prejudiced by trial counsel’s failure to call Sgt. Richardson as a witness at Johnson’s second trial. Chambers testified that the driver’s door of Ford’s vehicle did open. (Trial Record, R. 756.) Although Bender did testify at the postconviction hearing that the testimony that would have been elicited from Sgt. Richardson was elicited from Chambers, it is not necessary for this Court to reach the question whether counsel were, in fact, ineffective when we can resolve the issue by determining whether Johnson was prejudiced. "[T]here is no reason for a court deciding an ineffective assistance claim to … address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Sgt. Richardson’s testimony about the car door would have discredited Chambers’s testimony. Based on the evidence in this case, we cannot say that the failure to call Sgt. Richardson at Johnson’s retrial resulted in prejudice to Johnson. Johnson failed to satisfy the Strickland test and is due no relief on this claim.
II.
Johnson next argues that the circuit court erred in denying his claim that his trial counsel were ineffective for failing to conduct further investigation and to present more mitigation evidence at the penalty phase of his capital-murder trial.
We quote extensively from the circuit court’s findings of fact on this claim:
"In addition to Mr. [Darryl] Bender and Mr. [Erskine] Mathis, Johnson called 11 witnesses at the [postconviction] evidentiary hearing … Johnson’s first witness on the mitigation issue on remand was his paternal uncle, Elmer Johnson. Elmer testified that he and Johnson’s father, Ron Sr., and their other siblings grew up in poverty. There were times that they did not have enough food. Their father was a miner and also made moonshine. Their father was also physically abusive toward the children and sometimes would take the children to a shot house where he bought and drank liquor. Elmer said his father was mean when he had been drinking and that his mother and father sometimes fought. He remembers seeing bruises on his mother’s face. He testified that his mother shot his father, leaving a scar on his jaw and that his parents eventually were divorced.
"Elmer testified that Johnson’s father started drinking at a young age, and was drunk everyday. Johnson’s father took Johnson to a shot house and Johnson saw his father drunk often. Elmer testified that he witnessed Ron Sr. whip Johnson and on one occasion saw Johnson’s father shoot at him. He testified that he ‘mostly used to whip them when he was drunk.’
"Elmer described Johnson’s mother Donna Johnson’s parenting as ‘unconcerned,’ often leaving Johnson alone with his brother, Ron Jr., whom he cared for. Elmer also testified that when Johnson’s aunt, Celia Green, was reported missing that Johnson was very hurt, as she had been like a mother to him. Johnson often cried about the disappear- ance of ‘Mom’ and said he really needed her.’ This witness served in the Army and had no criminal record that was presented as a part of the evidence.
"Johnson also called another paternal uncle and his father’s twin brother, Donald Johnson. Donald testified about growing up with Ron Sr. and their other siblings. They grew up in a coal miner community often scavenging for coal at a dump for fuel to heat their home. His father would get drunk on the weekends and his parents would fight. According to this witness, Johnson’s father observed his father swing a hammer at his mother and [break] her arm. Donald also testified about the kids being home one night when his mother shot his father in the jaw. His brother, [Johnson’s] father, never graduated from high school, could not read or write, and worked on a garbage truck. Johnson stayed with this witness Donald and his wife Rosa on weekends and in the summer. Johnson had to abide by his rules and fulfill duties around the house. He would have allowed Johnson to live with his family full time, but did not want to split Johnson up from his brother. This witness has been employed all his adult life and will retire from [the University of Alabama at Birmingham] this year. He graduated from high school and no evidence was presented of a criminal record.
"Johnson’s mother, Donna Johnson, testified that she got pregnant with Johnson at age 17. After she got pregnant, she and Ron Sr. married. Donna testified that Ron Sr. drank every day. She also testified that they separated because of Ron Sr.’s infidelity. At some point Donna moved with her family to the Tuxedo Housing Project, also known as the Brickyard. Donna testified that there was significant crime at the Brickyard. Donna worked night shifts, 8 p.m. to 8 a.m. Her boyfriend, Jesse Stephens, used and sold drugs from her home.
"Donna testified that growing up, her stepfather, Drake Burks, drank heavily and treated Donna and her siblings different than his own children. According to this witness he abused her sexually. She also said that Burks would fight with Donna’s mother when he drank. Donna testified that she was too young to be a mother and that Johnson’s Aunt Celia ‘raised my baby.’ She testified that she went to Mr. Bender’s office to meet with him before testifying at the trial. Johnson’s mother has a history of unemployment. There was no evidence of a criminal record of this witness introduced at the hearing.
"Johnson’s maternal aunt, Cornell Brown, testified she and Donna were raised in a house with 14 children and they were poor. Ms. Brown also stated that Drake Burks made sexual advances toward her and Donna. After Donna became pregnant, she dropped out of high school. She also testified about Ron Sr. cheating on Donna. Ms. Brown testified that after Donna and Ron Sr. separated, Donna moved with her boys to the Brickyard. She also lived there too for part of the time. Ms. Brown stated that the Brickyard was a high crime area and she often heard guns being fired. She also testified that Donna’s boyfriend, Jesse Stephens, sold and used drugs. She would help Donna and her nephews out financially.
"Ronald Johnson, Jr., Johnson’s younger brother by six years, testified about growing up in Pratt City. Ron Jr. testified that his father drank daily and sometimes took him and Johnson to a shot house. Ron Jr. testified that after his mother and father separated that [his mother], he, and Johnson, moved to the Brickyard. Ron Jr. saw drugs being sold in the Brickyard and also heard gunshots. Jesse smoked crack in the house with him and Johnson and was violent toward his mother Donna. Ron Jr. also testified that friends of his and Johnson’s were victims of homicide. Ron Jr. also gave testimony of how the disappearance of their Aunt Celia Green had hurt Johnson. The witness is on probation for selling drugs.
"Vicky Thomas, Johnson’s cousin, testified that she and Johnson were close growing up. She attended college on a full scholarship and has her own tax office. She has been employed for 17 years with AT & T. She had also witnessed Johnson’s father drunk. She testified that Johnson would come over and stay at her house on the weekends, and no one ever ‘came after him.’ He followed the rules of her household. Ms. Thomas expressed her opinion about the Brickyard and stated that Johnson had lost friends to homicide. She was away at college during the trial. This witness has no criminal record.
"Latrice Taylor, a friend and former neighbor from the Brickyard, testified that Donna was ‘treated bad’ by Jesse Stephens. She also testified that Donna sometimes left Johnson and Ron Jr. with Jesse and that Johnson took care of his brother alone. Ms. Taylor said there was a lot of crime and violence at the Brickyard. She said that she and Johnson witnessed a man killed near their homes, and that Johnson had been shot himself. The witness graduated from high school and is on disability. No criminal record of this witness was introduced at the hearing.
"Johnson called his cousin Antonio Green. Mr. Green testified about his observations of Ron Sr.’s drinking. Mr. Green also testified that he had seen Ron Sr. verbally and physically abuse Johnson as well as Donna. He heard Johnson’s father call Johnson worthless and said he wished he (Johnson) had never been born. Mr. Green stated that his mother, Celia, and Johnson had a mother-son type relationship. Celia disappeared on October 12, 1990, when Johnson was 16 or 17 years old. According to Mr. Green, Johnson showed a lot of grief when Celia disappeared and he did not see as much of him thereafter. He testified that after his mother Celia’s disappearance he would see Johnson drunk and that he smoked marijuana. This witness graduated from high school and has been employed for over 16 years at the railroad. He testified in the second trial in the penalty phase. This witness had no criminal record introduced at the hearing.
"Johnson presented Ms. Lori James-Townes, a licensed clinical social worker, currently working in the Maryland Public Defender’s office. Ms. James-Townes listened to the testimony of witnesses and expressed her opinions as to certain ‘risk’ factors she found present in Johnson’s background. The risk factors she testified to included a history of family violence, alcohol and drug usage, poverty, community violence, school failure, unresolved grief due to the loss of his Aunt Celia, dysfunctional family, and abandonment issues. According to Ms. James-Townes, these factors adversely affected Johnson’s development, and he was susceptible to repeating behavior or being damaged in all areas of risk. She testified that ‘love’ in Johnson’s family did not buffer or remove him from the risks his family suffered. In Johnson’s case the risks outweighed the love in the family and for Johnson, and created a dysfunctional family.
" … .
"Mr. Bender testified that at the time of Johnson’s second trial he had handled 6 or 7 capital murder cases. Mr. Bender assumed the primary responsibility for the investigation and development of the mitigation in this case although Mr. Mathis presented the evidence at the sentencing. Mr. Mathis has very little memory of his participation in working on mitigation in this case. Mr. Bender’s testimony, as well as his time sheets, clearly establish that he investigated numerous aspects of Johnson’s background for potential mitigation evidence. Mr. Bender contacted numerous members of Johnson’s family, neighbors, and friends as well as staff members at Jefferson County Youth Detention Center to learn about Johnson’s behavior and attitude while he was incarcerated. He also contacted pastors and members of Johnson’s church, St. John’s Baptist Church of Pratt City. Mr. Bender testified he grew up in the Pratt City area himself. Mr. Bender investigated aspects of Johnson’s school background as well as had a number of meetings with Johnson’s mother, Donna. He also consulted with defense attorney Joe Morgan for ideas on mitigation. Mr. Bender’s time sheets establish that he spent a minimum of 98.8 hours investigating potential mitigation. Mr. Bender testified that the time list was not reflective of all the time he spent preparing for the mitigation presentation in this case. He testified that the way he prepared for a capital case he would have presented all the mitigation at the penalty phase in front of the jury, not holding anything back to present to Judge [Alfred] Bahakel. Therefore, all the evidence he had developed for mitigation purposes was presented at trial and was heard by Judge Bahakel.
"….
"… While this Court finds the lay and the expert mitigation witnesses called at the evidentiary hearing credible and their testimony compelling, given the findings of the jury and the trial judge of the two aggravating circumstances, this Court finds that such evidence would have had minimal, if any, additional mitigation value in the judge’s weighing process. It is apparent to this Court, given the facts of this case, that the murder of Deputy Hardy cannot be explained or mitigated based upon the risk factors testified to by Johnson’s mitigation expert that had affected Johnson’s development. This murder was not the culmination of Johnson having been subjected to physical abuse, poor parenting, poverty, alcohol or drug abuse or any combination of any of these events or conditions in his childhood or adolescence. Except for a drug case, [Johnson] had not had any other contact with law enforcement and had never gotten into trouble, according to his mother’s testimony at the sentencing hearing at the penalty phase of the trial. She testified that he had never hurt anyone. He was described by Tony Green as a well mannered and decent person growing up, ‘the good guy all around.’ There was certainly no evidence presented to the jury or judge that [Johnson] had ever been violent, or suffered in any way from violence against him in childhood. The deputy in uniform in this case was shot twice in the forehead at close range according to the coroner. Violet Ellison had testified at trial that Johnson said in a three-way jail conversation T shot the f__in the head and saw his head go back. He shouldn’t have been messing in my s__’ Even if the judge had heard all the mitigation evidence presented at the evidentiary hearing and had considered it in total to be a nonstatutory mitigator, given the horrific, cold-blooded facts of this case, the jury’s recommendation for death, and the two aggravating circumstances found by the judge, this Court finds it not ‘reasonably probable’ that Judge Bahakel would have weighed the aggravating factors and mitigating factors, and come to any different result. Additionally, this Court finds that although Mr. Bender and Mr. Mathis or any lawyer in hindsight could have presented more detail and called additional witnesses such as in the evidentiary hearing, it could have posed as much harm as good. For instance, a number of Johnson’s family members and friends were exposed to poverty, alcoholism, violence, and abuse during their youth and adulthood; however, they did not find themselves in the same position as Johnson and achieved jobs and education without criminal records.
"….
"At Johnson’s trial the State proved beyond a reasonable doubt that two statutory aggravating circumstances existed: (1) that Johnson murdered Deputy Hardy while Johnson was under a sentence of imprisonment; and (2) that Johnson murdered Deputy Hardy to disrupt or to hinder the lawful exercise of a governmental function or the enforcement of laws. While Johnson’s age at the time of the offense, 22 years, was considered by the trial court as a statutory mitigating circumstance, this court finds that it was not a strong one when weighing it against the aggravators proven by the State. Following an extensive mitigation investigation by Mr. Bender, he and Mr. Mathis strategically chose to present evidence from the witnesses they called at the penalty phase in an attempt to humanize Johnson and to rely on a plea for mercy. Additional friends and family, or even a mitigation expert, while perhaps available to testify during the second trial, would have been subject to a much more rigorous cross-examination than they were at the evidentiary, and possibly rebutted by the State….
"This Court finds that even if the evidence presented at the evidentiary hearing had been presented during the judicial sentencing hearing, it would not have altered the balance of the aggravating and mitigating circumstances and would have had no impact on the final sentence imposed.5b This Court finds that Johnson failed to prove by a preponderance of the evidence that Mr. Bender and Mr. Mathis were ineffective for failing to present additional mitigation evidence via records or witness testimony related to his background at the judicial sentencing hearing."
(Return to Second Remand, Second Suppl. C. 34–47.)
At the postconviction evidentiary hearing, Johnson presented the testimony of seven relatives: Johnson’s mother, Donna Johnson; his brother, Ronald Johnson; three uncles, Elmer Johnson, Cornell Brown, and Donald Johnson; and two cousins, Vicky Thomas and Antonio Green.
Elmer Johnson, Johnson’s paternal uncle, testified that Johnson’s father frequently drank and would get angry and that Johnson’s father would "whip [Johnson and his brother] … when he was drunk." Antonio Green, Johnson’s cousin, testified that Johnson’s father is an alcoholic, that when he drinks in excess he would be verbally and physically abusive to Johnson. Ronald Johnson, Johnson’s younger brother, testified that his father drank a lot and would frequently take him and Johnson to a shot house in the neighborhood, that when his mother and father separated he moved with his mother and Johnson to Ensley to a project called the Brickyard, that his mother’s boyfriend, Jesse Stephens, moved in with them, and that Stephens drank and would become violent toward him and his mother. Johnson’s other four relatives did not testify concerning any physical abuse that took place during Johnson’s childhood.
Bender, at the postconviction evidentiary hearing, testified that he could not remember whether he was told by Johnson or his mother about physical abuse in the Johnson household.6b The following occurred:
"[Assistant attorney general]: And concerning his background and his upbringing — ToForest’s upbringing — you spoke several times to his mother, Donna; correct?
"[Bender]: Spoke often to his mother.
"[Assistant attorney general]: And to your client, ToForest; correct?
"[Bender]: Yes.
"[Assistant attorney general]: And the purpose of that for mitigation, you were trying to find out information? Whether to use it or not, you still wanted to know concerning
"[Bender]: His history.
"[Assistant attorney general]: — how the family unit and how the upbringing occurred; right?
"[Bender]: Correct.
"[Assistant attorney general]: Were you told that there was domestic violence in the family?
"[Bender]: I don’t remember that. It could have been, but I don’t remember that. I don’t remember her saying — let me — I’ll answer it this way. I don’t remember the specifics of any conversation that I had with her. But what I gathered from it all was that she was strong, that she did a heck of a job with what she had."
(Return to Second Remand, R. 489–90.)
[75–78] Nothing in the record indicates that counsel had been told by Johnson or his mother about physical abuse in the Johnson household. A review of the record of Johnson’s trial shows that the presentence report states that Johnson had a good relationship with his father and that his mother was the "parent that unders[tood] him." (Trial Record, R. 88.)
" ‘A defense attorney is not required to investigate all leads, however, and "there is no per se rule that evidence of a criminal defendant’s troubled childhood must always be presented as mitigating evidence in the penalty phase of a capital case." ’ Bolender [v. Singletary], 16 F.3d [1547,] at 1557 [(11th Cir.1994)] (footnote omitted) (quoting Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir.1993), cert. denied, 513 U.S. 1161, 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995)). ‘Indeed, "[c]ounsel has no absolute duty to present mitigating character evidence at all, and trial counsel’s failure to present mitigating evidence is not per se ineffective assistance of counsel." ’ Bolender, 16 F.3d at 1557 (citations omitted)."
Marek v. Singletary, 62 F.3d 1295, 1300 (11th Cir.1995).
" ‘In evaluating the reasonableness of a defense attorney’s investigation, we weigh heavily the information provided by the defendant.’ Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir.2008), cert. denied, 555 U.S. 1183, 129 S.Ct. 1336, 173 L.Ed.2d 607 (2009). Indeed, a defense attorney ‘does not render ineffective assistance by failing to discover and develop evidence of childhood abuse that his client does not mention to him.’ Id. Here, there is no evidence that [the appellant] mentioned to his trial or appellate counsel or to any mental health experts (before trial or even afterward) that he had any family history of mental illness or that there was significant internal strife or dysfunction in his family."
DeYoung v. Schofield, 609 F.3d 1260, 1288 (11th Cir.2010). "The Constitution imposes no burden on counsel to scour a defendant’s background for potential abuse given the defendant’s contrary representations or failure to mention the abuse." Stewart v. Secretary, Dep’t of Corr., 476 F.3d 1193, 1211 (11th Cir.2007).
More importantly, it is clear from a review of the record that this is not a case where trial counsel conducted no investigation into mitigation evidence or where counsel were ignorant as to what evidence constituted mitigating evidence. The State submitted Bender’s attorney-fee declarations for Johnson’s first trial that ended in a mistrial and his second trial that ended in his conviction and sentence of death. Bender’s attorney declarations show that, in Johnson’s first trial, Bender spent 111 hours in out-of-court preparation on the case—57 of those hours were used to investigate mitigation.7b This itemization shows that Bender spoke to Johnson’s mother on multiple occasions, that he contacted the Birmingham Board of Education to obtain Johnson’s school records, that he talked to the principal of Johnson’s high school, that he spoke to members of Johnson’s family on multiple occasions, that he spoke to Johnson’s aunt who lived in Detroit, Michigan, that he spoke to numerous possible mitigation witnesses, that he talked with the staff at the Jefferson County Youth Detention Center, and that he spoke to Johnson’s pastor. For the second trial, Bender billed for 81 hours for his out-of-court time spent on the case; 41 of those hours were spent in investigating mitigation. This itemization shows that Bender went to Pratt City, where Johnson was raised, to speak with various people, and that he spoke to Johnson’s mother on multiple occasions.
[79] When considering whether a postconviction petitioner alleging ineffectiveness of counsel can establish prejudice in the penalty phase of a capital-murder trial, we may "reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
At the penalty phase, counsel presented the testimony of Donna Johnson, Johnson’s mother; Bessie Burts, Johnson’s maternal grandmother; and Antonio Green, Johnson’s cousin. Johnson’s mother testified that Johnson is the older of her two children; that Johnson has a younger brother; that she raised the two children by herself; that Johnson was living with her at the time of the murder; that Johnson attended, but did not graduate from, high school; that he got a job at a Shoney’s restaurant after he left high school; that Johnson has many aunts, uncles, and cousins; that Johnson has five children; that Johnson had never been in trouble for hurting anyone but had only been involved with drugs; that she loved her son; and that she hoped the jury would spare John- son’s life. She further testified that she and Johnson’s father had been separated for 19 years and that approximately 1 year before trial Johnson’s father got hit by a motor vehicle and was rendered blind as a result of the accident.
Bessie Burts testified that she has a close relationship with Johnson, that she has 15 grandchildren, that she had never known Johnson to hurt anyone, that she loved her grandson, and that she prayed that the jury would spare Johnson’s life.
Antonio Green testified that he is Johnson’s first cousin; that Johnson’s mother had a difficult time raising Johnson and there was no father around for Johnson; that Johnson was a decent person "growing up"; that his grandfather tried to help Johnson’s mother, but he was old; and that he hoped the jury would spare Johnson’s life.
[80] It is true that no testimony was elicited that Johnson’s father had been physically abusive to Johnson when he drank. However,
"[e]vidence of childhood abuse has been described as a double-edged sword. See Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir.2002) (evidence of brain injury, abusive childhood, and drug and alcohol abuse was ‘double edged’ because it would support a finding of future dangerousness). See also Miniel v. Cockrell, 339 F.3d 331 (5th Cir.2003); Harris v. Cockrell, 313 F.3d 238 (5th Cir.2002)."
Davis v. State, 9 So.3d 539, 566 (Ala.Crim. App.2008). Two statutory aggravating circumstances were proven by the State: that Johnson committed the murder while under a sentence of imprisonment and that Johnson murdered Deputy Hardy to disrupt or to hinder a governmental function or the enforcement of laws. Johnson was 22 years of age at the time of the murder. The postconviction court found that the omitted mitigation evidence would not have resulted in a different sentence. After reweighing all the mitigating circumstances, including the omitted mitigation, against the aggravating circumstances, we agree with the circuit court that the omitted mitigation would not have changed Johnson’s sentence. Johnson failed to satisfy the Strickland standard in regard to this claim and is due no relief.
For the foregoing reasons, we affirm the circuit court’s denial of Johnson’s postconviction petition.
AFFIRMED.
Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.
On Application for Rehearing
JOINER, Judge.
ToForest Onesha Johnson has filed an application for rehearing and a brief in support of that application. See Rule 40, Ala. R.App. P. In those rehearing materials, which are voluminous, Johnson has not demonstrated that our judgment of affirmance, from which his rehearing is taken, was in error. See Johnson v. State, [Ms. CR–05–1805, August 14, 2015] — So.3d — (Ala.Crim.App.2007).
Johnson has raised certain issues, however, that warrant additional discussion. Each of those issues relates to this Court’s opinion on original submission, which was issued on September 28, 2007, and which remanded the case to the trial court for an evidentiary hearing on certain claims, Johnson v. State, 379 So.3d 994 (Ala.Crim. App.2007).
First, Johnson points out that this Court’s reference to Steve Saxon as "a State’s witness" was erroneous. (Johnson’s application for rehearing, pp. 18–19.) Indeed, this characterization of Saxon appears to have been incorrect. That error, however, does not entitle Johnson to any relief on application for rehearing.
Second, Johnson appears to be correct in his assertion that this Court’s 2007 opinion erroneously stated that Johnson did not raise on appeal his allegations "challeng[ing] the trial judge’s bias and lack of impartiality stemming from the trial judge’s brother’s employment in the sheriff’s department." (Johnson’s application for rehearing, p. 19.) Johnson did in fact present arguments related to this claim in his original brief to this Court. This Court’s 2007 opinion, however, included an alternative analysis addressing the underlying claim. Johnson therefore is not entitled to relief on this issue.
Third, Johnson appears to be correct in asserting that our 2007 opinion incorrectly stated that Johnson had failed to raise on appeal the following claims from his third amended petition: Claims VII, VIII, XIII, XV, and XX(17).1c Those claims, in summary, are as follows:
-- Claim VII alleges that Johnson’s trial was so infected with prejudicial prosecutorial misconduct that he was deprived of due process;
-- Claim VIII alleges that trial counsel’s Batson 2c motion was improperly denied;
-- Claim XIII alleges that the jury was permitted to consider an aggravating circumstance for which "no evidence was submitted at trial" (Johnson’s rehearing application, p. 210);
-- Claim XV alleges that "he was denied a fair trial due to the presence of the large number of uniformed officers throughout the trial" (Johnson’s rehearing application, pp. 210–11); and
-- Claim XX(17) alleges that "appellate counsel ineffectively and unreasonably raised the claim on appeal that the State violated Mr. Johnson’s Due Process rights by advancing inconsistent theories at his co-defendant’s trials" (Johnson’s rehearing application, p. 214).
We have examined the arguments made by Johnson as to these claims. Initially, we note that these claims are, for the most part, duplicative of other claims raised by Johnson.3c Regardless, Johnson has not demonstrated that the trial court’s summary dismissal of these claims was inappropriate.
Finally, Johnson asserts that the circuit court and this Court "failed to rule on [Claims XX(10) and XX(11)] or address them in anyway [sic]." (Johnson’s rehear- ing application, pp. 216–17.) Claims XX(10) and XX(11) are generic assertions that appellate counsel rendered ineffective assistance by raising, in the motion for a new trial and on appeal, claims of ineffective assistance of trial counsel. This Court, in its 2007 opinion, addressed several specific claims alleging ineffective assistance of appellate counsel. The generic assertions in Claims XX(10) and XX(11) are insufficiently pleaded and, moreover, are without merit.
The application for rehearing is overruled.
APPLICATION OVERRULED.
WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.
On Remand from the United States Supreme Court
JOINER, Judge.
ToForest Onesha Johnson was convicted of capital murder for killing Jefferson County Deputy Sheriff William G. Hardy. Following the jury’s 10-2 recommendation, the circuit court sentenced Johnson to death. On direct appeal, this Court affirmed Johnson’s capital-murder conviction and sentence of death. See Johnson v. State, 823 So.2d 1 (Ala. Crim. App. 2001). The Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Ex parte Johnson, 823 So.2d 57 (Ala. 2001), and Johnson v. Alabama, 535 U.S. 1085, 122 S.Ct. 1978, 152 L.Ed.2d 1035 (2002).
In 2003, Johnson filed a Rule 32, Ala. R. Crim. P., petition attacking his conviction and death sentence. The circuit court denied the petition, and Johnson appealed. This Court remanded the matter twice for additional proceedings — once in 2007 and again in 2013. In 2015, we affirmed the circuit court’s denial of the Rule 32 petition. See Johnson v. State, 379 So.3d 994 (Ala. Crim, App. 2007). The Alabama Supreme Court denied certiorari review on November 18, 2016.
Johnson filed a petition for a writ of certiorari with the United States Supreme Court. In that petition, Johnson raised one issue: whether his claim that the State suppressed information that Victoria Ellison testified against Johnson out of hope for a reward warranted a remand to this Court for further consideration in light of Ex parte Beckworth, 190 So.3d 571 (Ala. 2013). In its response to Johnson’s petition, the State conceded that the case should be remanded.
On July 28, 2017, the United States Supreme Court granted Johnson’s petition for a writ of certiorari. The Court’s mandate stated:
"On petition for writ of certiorari to the Court of Criminal Appeals of Alabama. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the Court of Criminal Appeals of Alabama for further consideration in light of the position asserted by the [State of Alabama] in its brief filed on May 10, 2017."1d
Johnson v. Alabama, 582 U.S. 927, 137 S.Ct. 2292, 2292, 198 L.Ed.2d 720 (2017).
The evidence against Johnson is set forth in multiple opinions and will not be recounted in detail here other than to note that Victoria Ellison was a key witness for the State. Ellison testified at Johnson’s trial and stated that she had listened in on a three-way telephone call her daughter had made for Johnson while he was in jail awaiting trial. Ellison testified that during the call Johnson said, "I shot the fucker in the head and I saw his head go back and he fell…. He shouldn’t have got in my business, messin’ up my shit." (Direct Appeal R. 683–84.)
In his third amended Rule 32 petition, Johnson alleged:
"The State also withheld crucial evidence regarding Violet Ellison's motivation for coming forward with her story. Although news of the large cash reward offered in the case was widespread, the State never disclosed to Mr. Johnson’s lawyers that Ms. Ellison had specifically come forward with her story pursuant to the reward offer, although it knew this to be the case. Had Mr. Johnson’s lawyers known that Ms. Ellison was specifically motivated by the reward money, they would have had in their possession powerful impeachment evidence with which to challenge her credibility on cross-examination."
The circuit court denied the claim on the basis that the information regarding Violet Ellison’s motivation to testify amounted to impeachment evidence. This Court’s opinion of September 28, 2007, upheld the denial of that claim, citing authority that the claim was "procedurally barred because [Johnson] failed to satisfy the requirements of Rule 32.1(e)[, Ala. R. Crim. P.,] and because of the preclusionary grounds of Rule 32.2(a)(3) and (5), Ala. R. Crim. P." Johnson, 379 So. 3d at 1066.
In 2013, the Alabama Supreme Court in Ex parte Beckworth, supra, recognized that a petitioner may allege a claim for relief under Rule 32.1(a) based on an alleged violation of Brady. In such a case, the Court held, the petitioner does not have to plead facts in the initial petition to negate the preclusive bars of Rule 32.2(a)(3) and (5), Ala. R. Crim. P. Ex parte Beckworth, 190 So.3d at 575.
Johnson’s claim that the State knew Ellison was motivated by hope of a reward and did not disclose that fact to Johnson is a claim for relief under Rule 32.1(a), Ala. R. Crim. P. Johnson thus far has not had the opportunity to establish that the preclusionary grounds do not apply or to prove his claim. In light of Ex parte Beck-worth, Johnson is entitled to that opportunity.
Accordingly, this matter is remanded for additional proceedings. On remand, the circuit court shall conduct an evidentiary hearing on Johnson’s Brady claim related to the State's alleged knowledge of and alleged failure to disclose to Johnson that Violet Ellison testified against Johnson in the specific hope of obtaining the reward offered in the case. The circuit court shall enter specific written findings, including any ground of preclusion, as to that claim. Return to remand should be made to this Court within 56 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Welch, Kellum, and Burke, JJ., concur. On Return to Remand After Remand from the United States Supreme Court
MINOR, Judge.
This appeal involves a postconviction petition that ToForest Onesha Johnson filed almost two decades ago. After three evidentiary hearings on many of the claims that Johnson alleged, the only issue remaining before this Court is whether the Jefferson Circuit Court abused its discretion in finding that Johnson did not prove his claim alleging that the State of Alabama violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing that a key witness testified in the hope of a reward. After giving Johnson the chance to prove his claim, the circuit court found that the State did not pay the witness a reward until years after Johnson’s trial and that the State thus could not have disclosed the reward payment before trial. The circuit court also found that the witness did not testify in the hope of a reward and that the State thus could not have suppressed that information.
After supplemental briefing from the parties and with the benefit of oral argument, we hold, for the reasons below, that the circuit court did not abuse its discretion in denying Johnson’s Brady claim, and we affirm.
Facts and Procedural History
A jury convicted Johnson in 1998 of capital murder for the 1995 shooting death of Jefferson County Deputy Sheriff William G. Hardy. The jury recommended, by a 10-2 vote, that the circuit court sentence Johnson to death, and the circuit court followed that recommendation. This Court affirmed Johnson’s conviction and death sentence. Johnson v. State, 823 So. 2d 1 (Ala. Crim. App. 2001). Both the Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Ex parte Johnson, 823 So. 2d 57 (Ala. 2001); Johnson v. Alabama, 535 U.S. 1085, 122 S.Ct. 1978, 152 L.Ed.2d 1035 (2002).
Johnson filed this Rule 32, Ala. R. Crim. P., petition in 2003, attacking his conviction and death sentence. The circuit court summarily dismissed the petition in 2006. On appeal, this Court remanded the matter for more proceedings in 2007. On return to remand in 2013, this Court again remanded the matter for more proceedings. In 2015, we affirmed the circuit court’s denial of Johnson’s petition. See Johnson v. State, 379 So. 3d 994 (Ala. Crim. App. 2007) (June 14, 2013, opinion on return to second remand). The Alabama Supreme Court denied certiorari review in November 2016.
Upon Johnson’s and the State of Alabama’s request, the United States Supreme Court granted Johnson’s petition for a writ of certiorari, vacated this Court’s judgment, and remanded the matter to this Court in July 2017 for consideration of Johnson’s claim under Brady, supra, and Ex parte Beckworth, 190 So. 3d 571 (Ala. 2013). See Johnson v. Alabama, 582 U.S. 927, 137 S. Ct. 2292, 2293, 198 L.Ed. 2d 720 (2017). In April 2018, this Court remanded the matter to the Jefferson Circuit Court:
"The evidence against Johnson is set forth in multiple opinions and will not be recounted in detail here other than to note that Victoria Ellison was a key witness for the State, Ellison testified at Johnson’s trial and stated that she had listened in on a three-way telephone call her daughter had made for Johnson while he was in jail awaiting trial. Ellison testified that during the call Johnson said, ‘I shot the fucker in the head and I saw his head go back and he fell.… He shouldn’t have got in my business, mes- sin’ up my shit.’ (Direct Appeal R. 683-84.)
"In his third amended Rule 32 petition, Johnson alleged:
" ‘The State also withheld crucial evidence regarding Violet Ellison’s motivation for coming forward with her story. Although news of the large cash reward offered in the case was widespread, the State never disclosed to Mr. Johnson’s lawyers that Ms. Ellison had specifically come forward with her story pursuant to the reward offer, although it knew this to be the case. Had Mr. Johnson’s lawyers known that Ms. Ellison was specifically motivated by the reward money, they would have had in their possession powerful impeachment evidence with which to challenge her credibility on cross-examination.’
"The circuit court denied the claim on the basis that the information regarding Violet Ellison’s motivation to testify amounted to impeachment evidence. This Court’s opinion of September 28, 2007, upheld the denial of that claim, citing authority that the claim was ‘procedurally barred because [Johnson] failed to satisfy the requirements of Rule 32.1 (e)[, Ala. R. Crim. P.,] and because of the preclusionary grounds of Rule 32.2(a)(3) and (5), Ala. R. Crim. P.’ Johnson, 379 So. 3d at 1064.
"In 2013, the Alabama Supreme Court in Ex parte Beckworth, supra, recognized that a petitioner may allege a claim for relief under Rule 32.1(a) based on an alleged violation of Brady. In such a case, the Court held, the petitioner does not have to plead facts in the initial petition to negate the preclusive bars of Rule 32.2(a)(3) and (5), Ala. R. Crim. P. Ex parte Beckworth, 190 So. 3d at 575.
"Johnson’s claim that the State knew Ellison was motivated by hope of a reward and did not disclose that fact to Johnson is a claim for relief under Rule 32.1(a), Ala. R. Crim. P. Johnson thus far has not had the opportunity to establish that the preclusionary grounds do not apply or to prove his claim. In light of Ex parte Beckworth, Johnson is entitled to that opportunity.
"Accordingly, this matter is remanded for additional proceedings. On remand, the circuit court shall conduct an evidentiary hearing on Johnson’s Brady claim related to the State’s alleged knowledge of and alleged failure to disclose to Johnson that Violet Ellison testified against Johnson in the specific hope of obtaining the reward offered in the case."
Johnson v. State, [Ms. CR-05-1805, April 27, 2018] — So. 3d —, —, 2018 WL 1980778 (Ala. Crim. App. 2018) (opinion on remand from the United States Supreme Court).
In May 2019, Johnson moved the circuit court to vacate his death sentence. The next month, the circuit court ruled that it lacked jurisdiction to vacate Johnson’s death sentence because, the court said, this Court in its opinion remanding the matter had limited the circuit court’s jurisdiction to addressing the Brady claim involving Ellison. On June 6, 2019, the circuit court held a hearing on Johnson’s Brady claim.
At the hearing, Johnson offered 28 documentary exhibits 1e into evidence, including:
- A July 1995 letter from Jefferson County District Attorney David Barber asking then Governor Fob James to make an offer of reward for information leading to the arrest and conviction of the person or persons who killed Deputy Hardy (C. 461);2e
- Then Governor James’s reward proclamation from 1995 offering up to $10,000 for information about the crime (C. 463);
- Newspaper articles from 1995 about the crime and the reward offer (C. 134-37);
- An August 2, 2001, e-mail from Barber to Kathy Faulk, an employee in then Governor Don Siegelman’s office, asking about getting part of the reward money for Ellison’s assistance with the case (C. 479);
- Ellison’s August 6, 2001, application for the reward (C. 470);
- An August 7, 2001, letter from Barber to then Governor Siegelman requesting payment of $5,000 to Ellison (C. 472);
- An August 13, 2001, letter from then Governor Siegelman’s legal advisor to the State Finance Director requesting payment of $5,000 to Ellison (C. 469); and
- A copy of an August 18, 2001, check for $5,000 that the State paid Ellison for her testimony in Johnson’s case (C. 467).
The State called Ellison to testify at the hearing. Johnson called one witness in rebuttal, Sandra Turner.
At the circuit court’s request, Johnson filed a post-hearing brief and a proposed order in October 2019 and the State did likewise in November 2019.3e In March 2020, the circuit court denied the petition after considering the Brady claim, finding that Johnson did not show "by a preponderance of the evidence that witness Violet Ellison either came forward or gave testimony out of a ‘hope of reward’ OR that the State had knowledge of such motivation at or before the time of trial’ " (capitalization in original). (Supp. C. 54.) Johnson timely appealed.4e Standard of Review
[81] " ‘To prove a Brady violation, a defendant must show: (1) that the prosecution suppressed evidence, (2) that the evidence was of a character favorable to the defense, (3) that the evidence was material [or that the defendant was prejudiced].’ " Jones v. State, 322 So. 3d 979, 1024-25 (Ala. Crim. App. 2019) (quoting Jefferson v. State, 645 So. 2d 313, 315 (Ala. Crim. App. 1994)).
[82–85] The circuit court denied Johnson’s Brady claim after Johnson had a chance to prove the claim at an evidentiary hearing. See Rule 32.9(a), Ala. R. Crim. P.
"When the circuit court conducts an evidentiary hearing, ‘[t]he burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.’ Davis v. State, 9 So. 3d 514, 519 (Ala. Crim. App. 2006), rev’d on other grounds, 9 So. 3d 537 (Ala. 2007). ‘[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.’ Wilson v. State, 644 So. 2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that ‘[t]he petitioner shall have the burden of … proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). ‘However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, "[t]he standard of review on appeal … is whether the trial judge abused his discretion when he denied the petition.’ " Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992))."
Marshall v. State, 182 So. 3d 573, 581 (Ala. Crim. App. 2014).
Discussion
[86] Johnson argues that he is due "a new trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because the State failed to disclose that Violet Ellison, its key trial witness, was motivated by a cash reward offer." (Johnson’s brief, p. 18.) The circuit court denied the claim because, it found, Johnson did not prove that Ellison was ever motivated by a reward. Thus, the State could not have suppressed evidence about Ellison and the reward because no such evidence existed. See, e.g., Gavin v. State, 891 So. 2d 907, 986 (Ala. Crim. App. 2003) ("The State cannot suppress evidence that does not exist.").
Johnson argues that the circuit court erred in its findings denying him relief. Johnson argues first that, in finding that Johnson did not prove that Ellison was motivated by the State’s reward offer, "the circuit court erred in evaluating both the State’s reward records and … Ellison’s testimony." (Johnson’s brief, p. 22.) Johnson focuses on the August 7, 2001, letter from Barber to then Governor Siegelman requesting payment of $5,000 to Ellison. That letter stated:
"Dear Governor Siegelman: "On August 2, 1995, Governor Fob James, Jr. issued a proclamation offering a reward for information leading to the arrest and conviction of the guilty person or persons of the death of Mr. William G. Hardy.
"Violet Ellison, pursuant to the public offer of a reward, gave information leading to the conviction of ToForest Johnson in the Circuit Court of Jefferson County, Alabama, in the death of Mr. Hardy. An application has been submitted to the Honorable Alfred Bahakel, Circuit Judge, and he has signed an order authorizing the payment of half of said reward ($5,000) to the applicant.
"Enclosed are the following:
"1. Copy of Proclamation dated August 2, 1995.
"2. Order of Honorable Alfred Bahakel dated April 8, 2001.5e
"3. Application for Reward executed by Violet Ellison.
"It is respectfully requested that you approve payment of half of this reward ($5,000.00) by the State Comptroller to the applicant as set out in Judge Bahakel’s Order. If you will direct the Comptroller to mail the check to me, I will make arrangements to deliver it to the applicant.
"If any further information is required, please advise me.
"Very truly yours,
"David Barber
"District Attorney"
(C. 472-73.)
Johnson argues that Barber’s use of the phrase "pursuant to the public offer of a reward" shows that "Ellison acted ‘in consequence of,’ or in pursuit of, the offer" (emphasis added). Citing the statement in Gadsden Times v. Doe, 345 So. 2d 1361, 1363 (Ala. Civ. App. 1977), that "one must have knowledge of a reward at the time of performing the services for which the reward is offered in order to be entitled to the reward," Johnson argues that "for Ms. Ellison to qualify for the reward, Mr. Barber had to believe that she knew about the reward offer when she provided information to the State." (Johnson’s brief, p. 24.)
The circuit court, after considering the testimony and all admitted exhibits, rejected these arguments. The court found:
"The only direct evidence offered by [Johnson] at the evidentiary hearing, which is argued to be evidence of both Ms. Ellison’s motive for coming forward in 1995 and the State suppressing this evidence before trial in 1998, is a letter from District Attorney David Barber requesting a reward from the Governor for Ms. Ellison dated August 7, 2001. This court does not find this letter to be evidence by a preponderance of the evidence of either claim. On its face, it is evidence that the District Attorney sought a reward be paid to Ms. Ellison in 2001, for her testimony at Johnson’s trial, which led to his conviction in 1998. The language used by Mr. Barber is not conclusive as to whether Mr. Barber or any other prosecutor or detective knew of any motivation in 1995 up until the trial in 1998 on Ms. Ellison’s part. The letter … while evidence to be considered by the court, is neither conclusive [n]or convincing evidence to rebut the testimony of Ms. Ellison at the hearing. [Johnson] argues the very specific language ‘pursuant to’ imparts intent on Ms. Ellison’s part three years earlier before the trial, simply does not make
logical sense. According to Black’s Law Dictionary 1356 (9th ed. 2009), ‘pursuant to’ means that one acts ‘in accordance with,’ or ‘as authorized by’ a particular law or request. This court finds this language to be the legalese used to advise the Governor that Ms. Ellison was entitled to part of the reward that had been previously authorized in connection with Deputy Hardy’s murder. It was necessary to accomplish the result Mr. Barber intended.
"Even if this court was convinced that this letter imparted motivation to Ms. Ellison for the reason she came forward with information in 1995, it certainly would not establish knowledge on the part of the District Attorney, his prosecutors, or law enforcement in this case. The Alabama Supreme Court has specifically held that Brady requires that ‘the information requested by a criminal defendant be known to the prosecution,’ Ex parte Gammon, 578 So. 2d 1089, 1091 (Ala. 1991). Mr. Barber was not called as a witness, or his affidavit introduced by [Johnson]; therefore, it was not established that Mr. Barber ever spoke to, met, or had any knowledge of the motivations of Ms. Ellison when she came forward in 1995 and later gave testimony at the trial in 1998. Nor were any detectives or prosecutors alleged in the case called as witnesses or testimony offered by affidavits on the alleged Brady violation; therefore, no suppression of evidence has been established by a preponderance of the evidence as required in establishing a violation under Brady. Freeman v. State, 722 So. 2d 806, 811 (Ala. Crim. App. 1998). In regard to this prong of the test set forth in Freeman, speculation and conjecture will not support a finding that the State violated Brady. See Bailey v. State, 421 So. 2d 1364, 1369 (Ala. Crim. App. 1982). Moreover, even if Mr. Barber’s letter convinced this Court that Mr. Barber had knowledge that Ms. Ellison came forward with information in hope of a reward, there is nothing in this letter and no other evidence of when Mr. Barber would have allegedly learned of Ms. Ellison’s motivation. See Thrasher v. State, [295 So. 3d 118, 134 (Ala. Crim. App. 2019)] (‘The State’s possession or knowledge after trial of evidence potentially favorable to the defense is not a basis for a Brady claim.’) In this case, the court finds no evidence ‘that law enforcement officers or representatives of the prosecution ever discussed the possibility of a reward with [Ms. Ellison].’ McMillian v. State, 594 So. 2d 1253, 1258 (Ala. Crim. App. 1991)."
(Supp. C. 49-50.)
The record supports the circuit court’s findings. The circuit court did not err in finding that the August 7, 2001, letter— including Barber’s use of the phrase "pursuant to"—does not prove that Ellison came forward with information in hope of the reward or that the State ever knew of such a hope before Johnson’s trial. And the circuit court did not err in finding that "[t]he letter … is neither conclusive [n]or convincing evidence to rebut the testimony of Ms. Ellison at the hearing."
First, the circuit court’s interpretation of the phrase "pursuant to" is reasonable. Consistent with the definition of "pursuant to" that the circuit court used, Garner’s Dictionary of Legal Usage (3d ed. 2011) 737 defines the phrase as "(1) in accordance with; (2) under; (3) as authorized by; or (4) in carrying out." Garner writes, "Because the phrase means so many things, it is rarely—if ever—useful." Id.
And Gadsden Times does not support Johnson’s position. The statement that Johnson cites from that decision addresses a reward offered by a private party, as a later statement clarifies:
"[W]e are bound by the law of this state, which permits one to collect a reward offered by a private party only if he knew of such offer at the time of his action. Morrell [v. Quarles, 35 Ala. 544 (1860)]. The record reveals that Gulledge acted prior to the publication of any article which might reasonably have been construed to constitute an offer of reward by the Times. Thus, as a matter of law, there could have been no contract between the parties."
Gadsden Times, 345 So. 2d at 1364 (emphasis added). In Johnson’s case, however, the Governor—not a private party—made the reward offer under § 15-9-1, Ala. Code 1975.6e (C. 463.) That section conditions the payment of a reward only upon a person "giv[ing] information leading to the arrest and conviction of the guilty person."
The circuit court made these findings about Ellison’s testimony:
"Ms. Ellison testified that she recalled giving testimony in 1998 at Johnson’s trial. Ms. Ellison’s testimony at trial was to conversations overheard on three-way phone calls that her 16-year-old daughter was making for inmates at the Jefferson County Jail. On one of these calls, she overheard a man identify himself as ‘ToForest’ admit to murdering Deputy Bill Hardy. Ms. Ellison contacted the Jefferson County Sheriff’s Office six days later to give them the information she had and had made notes of. These notes were admitted at the trial and reintroduced at this evidentiary hearing. Ms. Ellison recalled contacting the Jefferson County Sheriff’s Office on August 9, 1995, and meeting with investigators that same day.
"Ms. Ellison testified that at the time she made the initial phone call to the office, she had no knowledge from any source that a reward had been offered. She had not read anything about a reward in the newspaper, heard about a reward on TV or discussed a reward with anyone. She also testified, that at the time she testified in this case, and that in all the time leading up to the trial, she was unaware of any reward. She did testify both at the trial on cross-examination and at the hearing, that she came forward and called the Sheriff’s Office six days after she overheard the conversation, because ‘I was troubled. My spirit was troubled by not—you know, by hearing this and not saying anything and doing anything about it.’ She testified she couldn’t sleep during this time. Ms. Ellison further testified at the hearing that before coming forward to the Jefferson County Sheriff’s Office, she talked to her mother and her mother told her to tell the truth, and to do what she needed to do.
"Ms. Ellison testified that she did not know anything about a reward until about three years after she testified at Johnson’s 1998 trial, when she received a call from someone in the Jefferson County District Attorney’s Office asking her to ‘come in and sign some papers.’
She testified she waited ‘a couple of days,’ then went to the District Attorney’s Office. Ms. Ellison identified a copy of the application for the reward that she signed on August 6, 2001. Ms. Ellison also identified a copy of the receipt for $5,000 in reward money that she signed on August 23, 2001. Ms. Ellison testified that the first time she knew about a reward was when she was contacted by the District Attorney’s office in August of 2001.
"On cross-examination, Ms. Ellison testified that she read about Deputy Hardy’s murder in a newspaper a couple of days after it happened. Ms. Ellison testified that she figured out that she knew Deputy Hardy’s wife, because she worked at the bank where Ms. Ellison was a customer. She also testified that she had met Deputy Hardy at the dog track with his wife. Ms. Ellison was asked questions concerning her finances and gave testimony that she and her husband filed for bankruptcy some five years before going to the [Jefferson County Sheriff’s Office] in 1990.
"After the State rested, [Johnson] called rebuttal witness Ms. Sandra Turner. Ms. Turner and Ms. Ellison have been next door neighbors for over 30 years. Ms. Turner testified that it was her personal opinion that Ms. Ellison was not truthful and that her reputation in the community was not good for truthfulness. On cross-examination, Ms. Turner admitted that her son and Ms. Ellison’s granddaughter have a son together and there is bad blood between her and Ms. Ellison and in the family. She also admitted that her son had been sent to prison for being a ‘watchman,’ while another man raped Ms. Ellison’s daughter.
"….
"Rather than speculate as to the meaning and knowledge imparted in a letter three years after the trial, and six years after Ms. Ellison came forward with information, or on numerous other circumstantial and irrelevant exhibits introduced at the hearing by [Johnson], it is critical that this court evaluate Ms. Ellison’s credibility, both as a witness at the trial and the evidentiary hearing, as her testimony at the evidentiary hearing is completely contrary to the Brady violation claim made by [Johnson], and the sole issue to be decided by this court. … [T]his court was not the trial judge in this case, but a thorough review of the trial record has been made. This court observed … Ms. Ellison testify at the evidentiary hearing, such as the jurors in the trial did, before reaching a verdict of guilty and recommending a sentence of death. There is no question that Ms. Ellison was a critical witness for the State at both proceedings. The jurors’ opinion of her credibility at the trial has been clearly established by the verdicts rendered. Her testimony at the hearing was consistent with her trial testimony and she was not impeached on cross-examination by [Johnson] at the hearing. It is not this court’s role at this stage of the Rule 32 process to address the weight of evidence at the trial or the weight of Ms. Ellison’s testimony at the trial, but her credibility then is relevant here and now.
"This court was very narrowly directed by the Court of Criminal Appeals to determine after a hearing whether [Johnson’s] claim of a Brady violation has been proven by a preponderance of the evidence. This requires this court to assess this witness’s credibility. Ms. Ellison appeared before the court well dressed, well spoken and answered the questions both on direct and cross with confidence, deliberate in her testimony.
She had a good recollection of dates, names, and meetings. She had a good recollection of the facts that she testified to at trial. She did not [waver] about any subject on cross-examination. Ms. Ellison testified on at least eight occasions while on the witness stand, that she had no knowledge from any source about a reward before she came forward and gave information to the Jefferson County Sheriff’s Office on August 9, 1995, or before trial of the case in August of 1998. Johnson contends that ‘the evidence from the trial and the 2019 hearing supports the conclusion that Ms. Ellison knew about the reward all along.’ This court finds no convincing evidence to rebut Ms. Ellison’s testimony at the hearing. Johnson’s Exhibits of newspaper and television accounts reporting a reward are circumstantial evidence at best that Ms. Ellison must have known about the reward at the time she came forward or gave testimony at trial. Ms. Ellison admitted she followed the case in the media but was unaware of a reward. [Johnson’s] Exhibits concerning pretrial publicity about the reward, are also evidence of possible pretrial knowledge of the reward by trial counsel. It is clear from the trial record that [Johnson’s] trial counsel had knowledge of the reward and asked defense witness Yolanda Chambers during Johnson’s 1998 trial about her seeking a reward. It is as likely as not that Ms. Ellison was deliberately not asked about the reward on cross as part of a strategy by trial counsel. In fact, Ms. Ellison has been clear and consistent about her motivation in coming forward both at the trial in 1998 and the hearing. At trial on cross-examination, Ms. Ellison said she waited six days to come forward because [she] didn’t want to get involved. She said:
" ‘A. And I didn’t know—reasons I didn’t get in touch with anybody, I didn’t even know how to get in touch with Patricia, because I didn’t know where Patricia Hardy lived.
" ‘Q. But it was so important to you on the 3rd that you took these notes down verbatim about this conversation, and yet you took no action whatsoever about it for six days.
" ‘A. Because I did not want to get involved because I felt like if a person would shoot a police officer with a uniform on, what would they do to me? [A]nd I did not want to get involved. That’s why I didn’t talk. And my conscience bothered me and I could not sleep, and that’s why I came in.’ (Trial R. 708.)
"At the evidentiary hearing on direct examination, she testified, ‘I was troubled. My spirit was troubled by not— you know, by hearing this and not saying anything and doing anything about it.’ On cross-examination Ms. Ellison continued to explain her motivation for coming forward. On cross-examination she testified that
" ‘yes, my spirit was troubled about that. But in this world these days, you don’t go out and try to tell people about what has happened. I did not do that. I waited until I felt like I was being—I was safe in going to these people to talk. People will hurt you. Because I talked to my mother. And my mother and my father had always told me to tell the truth.’
"Ms. Ellison went on to testify that ‘[a]nd then I talked to my mother about it. And she said, "You have to do what you have to do but just be careful." That’s what she said.’
"Johnson also contends that Ms. Ellison’s financial condition at the time she came forward is circumstantial evidence of her motivation for a reward. She tea- tified at the hearing that she lived on a fixed income, her husband’s job had been discontinued and he was unemployed for a few weeks, and they had filed for bankruptcy some five years before she came forward with information. This court finds this argument to be contradicted by the facts actually presented by [Johnson]. There is no record until August 6, 2001, five years after she initially came forward and made a statement and three years following the conviction in this case, that she made an application for the reward. This certainly is contrary to the argument that she was in financial need and came forward motivated by substantial financial reward. In fact, the timing of her actions are completely consistent with her testimony that she knew nothing of a reward until she got a call from someone at the [District Attorney’s] office to ‘come in and sign some papers.’ If her true motive was to seek a reward, this court would expect she would have made application for the reward as soon as possible after the conviction. There is no evidence that the State knew of her interest in a reward before her making the application, that the District Attorney invited her to do. Had the State known of either before the trial in this case, it would seem logical that the State would have started the process as soon as possible after the trial. The relevant focus in this court’s Brady analysis is not how Ms. Ellison learned about the reward, although important here, but when she learned about the reward. Based on this Court’s observation of Ms. Ellison’s demeanor as well as her clear, consistent, and articulate testimony at the evidentiary hearing in this case, this court finds her testimony to be compelling and credible evidence that she did not learn of the reward until years after Johnson’s trial. Ms. Ellison’s testimony rebuts any evidence introduced by [Johnson]. Therefore, [Johnson’s] Brady claim has failed to be proved by a preponderance of the evidence."
(Supp. C. 47-48, 51-53 (some citations omitted).)
[87] For many reasons, Johnson argues that Ellison’s testimony was "impossible to believe." (Johnson’s brief, p. 27.) Before evaluating those reasons, however, we note that "[w]hen evidence is presented ore tenus, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented." Ex parte Hayes, 70 So. 3d 1211, 1215 (Ala. 2011). Here, the circuit court made extensive findings about Ellison’s testimony. The circuit court found Ellison credible and relied on her testimony to deny Johnson’s Brady claim. In Washington v. State, 95 So. 3d 26, 47 (Ala. Grim. App. 2012), this Court stated:
" ‘The resolution of this factual issue required the trial judge to weigh the credibility of the witnesses. [That] determination is entitled to great weight on appeal. State v. Klar, 400 So. 2d 610, 613 (La. 1981). "When there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. [Those] factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence." Klar, 400 So. 2d at 613.’
"Calhoun v. State, 460 So. 2d 268, 269-70 (Ala. Crim. App. 1984). See also Brooks v State, 929 So. 2d 491, 496 (Ala. Crim. App. 2005); State v. Cortner, 893 So. 2d 1264 (Ala. Crim. App. 2004). ‘A trial court’s ruling on conflicting evidence will not be disturbed unless it is palpably contrary to the weight of the evidence.’ State v. Cortner, 893 So. 2d at 1267-68." Johnson first asserts that
"Ms. Ellison’s 2019 [testimony] as to how she came to receive the reward in 2001 does not make sense. Ms. Ellison claimed that the State contacted her out of the blue in 2001, three years after Mr. Johnson’s trial, and asked her to come, ‘sign some papers,’ and receive a reward."
(Johnson’s brief, p. 28.) The circuit court, however, found Ellison credible on this point, and Johnson’s disagreement with the circuit court’s finding does not show that the finding was " ‘palpably contrary to the weight of the evidence.’ " Washington, supra. The documents Johnson offered at the hearing likewise do not show that the circuit court’s findings about Ellison’s testimony were wrong.
And as the State notes, Johnson offered no evidence from anyone employed in the Jefferson County District Attorney’s Office to rebut Ellison’s testimony. Indeed, during closing arguments, the circuit court told the parties that it would like to hear, either by affidavit or live testimony, "from [District Attorney] David Barber, from [prosecutor] Jeff Wallace, from [prosecutor] Theo Lawson, from deputy—or Sergeant Salter and Sergeant Richardson." (R. 213.) Johnson objected to offering more evidence, however, stating that he thought he had proved his case. (R. 214.) The State also objected to reopening the evidence because, in the State’s view, Johnson knew about those witnesses but did not call them to testify—and he should not have another chance to prove his case. (R. 214-15.)
Johnson again cites Gadsden Times, supra, to argue that Ellison was not eligible for the reward unless she knew about it when she gave information to the State. But as stated above, Gadsden Times does not support Johnson’s position.
Johnson next asserts that the State "has repeatedly contradicted [Ellison’s] account of the confession she claimed to have heard." (Johnson’s brief, p. 28.) In support of this assertion, Johnson cites what he says were conflicting theories of prosecution in the proceedings against Johnson’s codefendants Ardragus Ford and Omar Berry. The circuit court, however, refused to consider those theories because, the court held, its decision had to be "based on an impartial review of the admissible evidence presented according to the law."7e (Supp. C. 54.) And, the circuit court said, this Court’s remand order did not instruct that court "to consider the weight or sufficiency of the evidence at the trial in this case or to make judgments concerning the conflicting theories of the prosecution of this case." (Supp. C. 54.) In his initial brief on return to remand. Johnson does not challenge the circuit court’s rulings on these points.8e Thus, Johnson waived any challenge to them. See, e.g., Boshell v. Keith, 418 So. 2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.").
Johnson also asserts that the State, in its opening statement at the evidentiary hearing, "undermin[ed] Ms. Ellison’s credibility" because, Johnson says, "it did not track her testimony concerning how she learned about the reward." (Johnson’s brief, p. 29 n.7.) During its opening, the State asserted:
"The State anticipates that Ms. Ellison when she testifies will inform the court when she contacted law enforcement, the sheriff’s department, on August 9th, 1995, she didn’t know anything about a reward, had not heard about a reward. When she testified in August of 1998, she didn’t know about a reward, had not heard of a reward. A few years later, she had a conversation with someone who mentioned the reward. And I’m not going to get into that conversation. I don’t want to get into hearsay before the court. But after that conversation, she made an inquiry to the district attorney’s office. And she made an application. And this was in August of 2001, three full years after she testified."
(R. 18-19.) According to Johnson, however, "Ellison then testified to an entirely different story—that the first time she ever heard of the reward was when the Office of the District Attorney contacted her years after the trial and asked her to accept a reward payment that she had not requested." (Johnson’s brief, p. 29 n. 7.)
The circuit court, however, rejected Johnson’s assertion:
"Johnson claims that statements made in the opening by the State at the June 6, 2019, evidentiary hearing constitute evidence which this Court should consider in assessing witness Violet Ellison’s credibility and as part of this Court’s Brady analysis. Because the statements of counsel are not evidence in this case, the fact that the State’s summary of what the witness would testify to, does not match up in every respect with the [witness’s] testimony under oath, does not support the argument made by [Johnson], that Ms. Ellison’s testimony was not credible. See Land v. State, 678
So. 2d 201, 221 (Ala. Crim. App. 1995), aff’d, 678 So. 2d 224 (Ala 1996)."
(Supp. C. 53-54.) Johnson has not shown that the circuit court erred in rejecting his assertions about the State’s opening statement.
Johnson next asserts that "the confession that Ms. Ellison claimed to have heard contradicts the physical evidence in the case." (Johnson’s brief, p. 29.) Johnson asserts: "Ms. Ellison claimed to hear a man say that his name was ToForest’ and that he and another man fired shots at Deputy Hardy. … But the State’s own evidence makes clear that one shooter fired two shots in rapid succession." (Johnson’s brief, p. 29.)
Johnson’s trial counsel argued that the physical evidence in the case contradicted Ellison’s testimony, and, as Johnson describes it, trial counsel "speculated that Ms. Ellison had embellished or altered what she had heard on the phone." (Johnson’s brief, p. 34 (citing Trial R. 985-86).)
As noted above, Johnson did not challenge the circuit court’s refusal "to consider the weight or sufficiency of the evidence at the trial in this case." (Supp. C. 54.) As also noted above, the circuit court found:
"The jurors’ opinion of [Ms. Ellison’s] credibility at the trial has been clearly established by the verdicts rendered. Her testimony at the hearing was consistent with her trial testimony and she was not impeached on cross-examination by [Johnson] at the hearing. It is not this court’s role at this stage of the Rule 32 process to address the weight of evidence at the trial or the weight of Ms. Ellison’s testimony at the trial, but her credibility then is relevant here and now."
Johnson has not shown this Court that, considering the State’s evidence at Johnson’s trial, the circuit court erred in its conclusion that Ellison was a credible witness.
Next, Johnson asserts that "Ms. Ellison claimed to have taken notes based directly on what she heard, but her notes include facts from other sources." (Johnson’s brief, p. 29.) But Johnson gives only one example of a "fact from other sources"—Johnson says that even though Ellison "testified unequivocally that the man on the phone ‘didn’t say Johnson, he just said ToForest,’ " in her notes Ellison "repeatedly wrote ‘Johnson’ referring to the person she heard on the phone." (Johnson’s brief, p. 30.)
Johnson’s trial counsel and his Rule 32 counsel cross-examined Ellison thoroughly about her notes. The circuit court found that Johnson did not impeach Ellison at the Rule 32 hearing, and Johnson has not shown that the circuit court erred in that finding.
Finally, Johnson asserts that Ellison’s testimony at the Rule 32 hearing "that she followed the case closely in the news in 1995 … undermines her claim that she had never heard of the public reward offer." (Johnson’s brief, p. 30.) He argues: "Given the way Ms. Ellison was following the case—a case in which a person she knew had been killed—it is implausible that she never heard about the reward offer." (Johnson’s brief, p. 31.) As the already quoted parts of the circuit court’s order show, however, the court ruled against Johnson on this issue:
"This court finds no convincing evidence to rebut Ms. Ellison’s testimony at the hearing. Johnson’s Exhibits of newspaper and television accounts reporting a reward are circumstantial evidence at best that Ms. Ellison must have known about the reward at the time she came forward or gave testimony at trial. Ms. Ellison admitted she followed the case in the media but was unaware of a reward.
[Johnson’s] Exhibits concerning pretrial publicity about the reward, are also evidence of possible pretrial knowledge of the reward by trial counsel. It is clear from the trial record that [Johnson’s] trial counsel had knowledge of the reward and asked defense witness Yolanda Chambers during Johnson’s 1998 trial about her seeking a reward. It is as likely as not that Ms. Ellison was deliberately not asked about the reward on cross as part of a strategy by trial counsel.9e In fact, Ms. Ellison has been clear and consistent about her motivation in coming forward both at the trial in 1998 and the hearing.
"….
"… Based on this Court’s observation of Ms. Ellison’s demeanor as well as her clear, consistent, and articulate testimony at the evidentiary hearing in this case, this court finds her testimony to be compelling and credible evidence that she did not learn of the reward until years after Johnson’s trial. Ms. Ellison’s testimony rebuts any evidence introduced by [Johnson]. Therefore, [Johnson’s] Brady claim has failed to be proved by a preponderance of the evidence."
Under our standard of review, we must give great weight to the circuit court’s factual determinations and findings about Ellison’s credibility. Washington, supra. Johnson has not shown that those determinations are " ‘ "clearly contrary to the evidence." ’ " Id. Thus, he is due no relief.
In his reply, Johnson asserts:
"The problems with this capital case are so severe that both the Jefferson County District Attorney and the lead trial prosecutor from the case support a new trial for ToForest Johnson. Yet the State, now represented by the Office of the Attorney General, does not address any of the problems with the case in its brief. Instead, the State argues that this Court should ignore virtually everything—the District Attorney’s position, legal authority that supports Mr. Johnson’s Brady claim, the amicus brief of the Innocence Project, and even parts of the record that undermine the State’s position. This Court should reject the State’s approach, confront the realities of this case, and reverse the decision of the circuit court."
(Johnson’s reply, p. 1.) We must reject Johnson’s request that we consider the wishes of the Jefferson County District Attorney or the former lead prosecutor in Johnson’s case or that we consider the opinion of the Innocence Project about Johnson’s conviction. The only issue before the circuit court on remand was giving Johnson a chance to prove his Brady claim.
On appeal, the only issue before this Court is whether the circuit court abused its discretion in denying Johnson’s Brady claim. Johnson has not shown that the circuit court erred in finding that he did not prove that, at any time before or during Johnson’s trial, Ellison knew about or hoped to get a reward. Thus, the State could not have known that Ellison knew about or hoped to get a reward, and Johnson is due no relief on his Brady claim. See, e.g., Gavin, 891 So. 2d at 986 ("The State cannot suppress evidence that does not exist.").
The circuit court’s judgment is affirmed.
AFFIRMED.
Windom, P.J., and Kellum and McCool, JJ., concur. Cole, J., recuses himself.